THE RIGHT TO SOCIAL PROTEST:
NEGOTIATING CONSTITUTIONAL MEANINGS
DOMINGO A. LOVERA-PARMO
A DISSERTATION SUBMITTED TO THE FACULTY OF GRADUATE STUDIES
IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF
DOCTOR OF PHILOSOPHY
GRADUATE PROGRAM IN LAW
OSGOODE HALL LAW SCHOOL
YORK UNIVERSITY
TORONTO, ONTARIO
JUNE 2016
© DOMINGO A. LOVERA-PARMO, 2016
ABSTRACT
This research deals with a parcel of the protests that have been taking place over
the last few years, particularly since 2010: those protests in which the protesters,
instead of rebelling against the legitimacy of the system, have preferred to accept
the regime’s remaining in place and consequently have manifested their discontent
via playing by the constitutional rules of the game. Although governmental
responses have varied in degree, in the end they have all focused on limiting the
right of the people to publicly assemble and express their views. As this work
contends, when governments restrict protests (sometimes violently doing so) they
ignore the fact that protests involve the exercise of rights and arbitrarily restrict
the voices that shape constitutional understanding.
By resorting to a mixture of theoretical and comparative approaches, this thesis
argues that protests which manifest their acceptance of the regime’s remaining in
place have, when dealing with matters “a lot of people care a lot,” the potential of
becoming popular interpretations of constitutions.
The thesis is composed of three main argumentative lines. The first argumentative
line rests on the sociology of social movements and from there proposes some
conceptual definitions as to what playing by the rules means to social protests. The
second argumentative line builds on a comparative analysis to show what
constitutional rights are (usually) involved in protecting social protests and what
other rights should be considered in enhancing that protection. Finally, the third
argumentative line explains that accepting the regime’s remaining in place poses
politico-constitutional duties on both sides, that of the citizens and that of
institutions. Whereas citizens find themselves committed to submitting their
popular understandings to institutions, institutions are bound to open their venues
and dialogue with (and not merely to be, depending on circumstances, influenced
by) these popular contentions.
ii
To my daughter Amaya
iii
ACKNOWLEDGMENTS
I have been lucky enough to cross paths with many intelligent and kind people.
Many of them took the appropriate time to listen and give helpful feedback. I really
appreciate their time, critiques, advice, and encouragement. Although I have
written this work, it is the fruit of many collective exchanges I cannot but be
thankful for.
First of all, I would like to thank my supervisory committee and particularly my
supervisor Allan Hutchinson. Whether intentional or not, he always asked me the
right questions and pressed the nodal points of my work—even when we were
talking about football. I am happy to have taken his advice—“Come to Canada!”—
when we met in Santiago, Chile some years ago. Many other professors at Osgoode
Hall Law School were of great help and inspiration. I would like to thank Dan Priel
for having taken the time to read and discuss many sections of this work, providing
sharp and tremendously helpful comments. The study groups I had with
Hutchinson himself and those with professors Liora Salter, Sonia Lawrence and
Carys Craig—many of the works we read are cited and referred to in this
dissertation—, along with the conversations I had with Shin Imai, were also of
enormous help.
This work also benefited from the words, insights, and critiques of many friends
and colleagues: Amaya Álvez, Natalia Ángel, Jaime Bassa, Andrea Benavente,
Nicolas Benoît-Guay, John Charney, Alberto Coddou, Jorge Contesse, Pablo
Contreras, Javier Couso, Nicolás Espejo, Rodolfo Figueroa, Roberto Gargarella,
Matías Guiloff, Raúl Letelier, Constanza Salgado, Tomás Vial, Christian Viera, and
my colleagues at Universidad Diego Portales, with whom I discussed my
dissertation proposal during the South American summer of 2013. I thank them all.
Various sections and pieces of this work were presented at different conferences
and workshops. These include: the 8th Annual Legal Studies Graduate Conference,
‘Emancipatory Approaches: Engaging Law and Social Movements,’ at Carleton
iv
University (March, 2013); the Law, Culture and Critique, 2013 Osgoode Forum, at
Osgoode Hall Law School (May, 2013); the 6th Annual Conference: ‘Social
Movements and the Law,’ organized by The Toronto Group for the Study of
International, Transnational & Comparative Law (May, 2013); and at the Law,
Dissent, Power, 2014 Osgoode Forum, at Osgoode Hall Law School (May, 2014).
Third, I would like to thank the Chilean Government and Universidad Diego
Portales (Chile), where I work, for their generous financial support. Without this
help studying, let alone living, in the Northern Hemisphere would be impossible
for those of us from developing countries.
I thank Alana Wesley for helping me editing and proofreading this thesis.
Last, and most importantly, I would like to thank my family and my wife Viviane.
This work would not have been possible without Viviane’s love, support, company,
and generosity. She interrupted her ascending professional career (to which she
has now returned!) to join me in this three-year experience; I cannot help but
wonder whether I would have done the same if I were in her position. Our time in
Canada also resulted in our beautiful daughter Amaya. Her daily smiles, I do not
need to tell this, are our raison de vivre.
Santiago, May 2016
v
TABLE OF CONTENTS
Abstract
ii
Dedication
iii
Acknowledgments
iv
Table of contents
vi
INTRODUCTION: THE PENGUIN’S CONSTITUTIONAL INTERPRETATION
1
I. Liberal constitutionalism: the context
3
II. Social protests and constitutions: the argument
8
III. Dissertation plan
13
CHAPTER 1. CONSTITUTIONAL NOTES FROM THE SOCIOLOGY OF MOVEMENTS
25
I. Social movements and politics outside the institutions
28
II. Who are the addressees? Presupposing the State
40
A. States, institutions and social movements
41
B. Political context
51
III. Social movements and social protests: some constitutional notes 56
A. Outside institutional channels
59
B. Challenging nature
64
C. Joint action
72
D. Continuity
80
Conclusions
82
CHAPTER 2. RESIST AND PROTEST
85
I. Common threads
90
II. Constitutional facts
94
III. A constitutional distinction
104
Conclusions
114
vi
CHAPTER 3. THE (POSITIVISTIC) RIGHT TO PROTEST: FOUNDATIONS
116
I. ‘A Deteriorated Right’
117
A. Rights
121
B. A (positivistic) right
125
II. Freedom of expression
128
A. Protests as expressions
130
B. Expression as a right
136
III. Freedom of assembly
145
A. Freedom of assembly as an independent right
148
B. TPM regulations and public order
151
Conclusions
167
CHAPTER 4. THE RIGHT TO PROTEST: EXPANSIONS
169
I. Public forum / the right to the city
171
A. Public forum as a positive right
176
B. A positive right?
183
II. Participating without a face
196
A. From privacy to contextual integrity
198
B. Harms to protests
203
C. Surveillance
207
D. Counter surveillance
216
E. Masks, hoods, and anonymity for protesters
224
Conclusions
240
CHAPTER 5. POPULAR CONSTITUTIONALISM AND SOCIAL PROTEST
I. Popular constitutionalism
242
245
A. Just multitudes?
246
B. Foundations
254
C. Avenues (to speak)
276
vii
II. Popular institutionalism
280
A. The need for institutions (avenues to be heard)
281
B. Disregarding the State
286
Conclusions
298
CHAPTER 6. PROTESTS AND INSTITUTIONS: TAKING THE CONSTITUTION WHERE?
I. Democratic burdens on social protest
301
307
A. The constitutional burdens on social protests
309
B. A democratic burden
314
II. Institutional popular constitutionalism
317
A. The diarchic character of constitutional interpretation
318
B. Democratic internal viewpoint
327
Conclusions
331
CONCLUSIONS: PROTESTS AS NEGOTIATING TOOLS
333
BIBLIOGRAPHY
343
viii
INTRODUCTION: THE PENGUIN’S CONSTITUTIONAL INTERPRETATION
“You say you'll change the constitution
Well, you know
We all want to change your head”.
John Lennon – Paul McCartney∗
In 2006, thousands of secondary public school students went out to the streets of
several cities in Chile. Under banners such as ‘enough already,’ ‘education is not a
commodity,’ and ‘let’s put Pinochet’s education to an end,’ they demanded a
comprehensive educational reform. The Penguin Revolution—named after the
uniforms students wear in Chilean schools, an opaque mixture of grey and white—
contested what, until then, was a bedrock constitutional interpretation, namely
that education was a commodity and that private schools were businesses to be
run under the auspices of free-market commandments.1
This understanding, followed by a market-oriented model of legislative and
administrative rules, permitted the instauration of a two-tier system for accessing
education and other social goods as well. It eventually allowed for-profit
∗
Revolution, on HEY JUDE (APPLE Records 1968).
See generally, Sofia Donoso, Dynamics of change in Chile: explaining the emergence of the 2006
Pingüino movement, 45 J. LAT. AMER. STUD. 1 (2013) (framing the substantive claims students posed
as an opposition to the neoliberal education model); Donna M. Chovanec & Alexandra Benitez, The
Penguin Revolution in Chile: exploring the intergenerational learning in social movements, 3 J.
CONTEMPORARY ISSUES IN EDUCATION 39, 43-4 (2008). It is worth noting what might sound
counterintuitive: some of these private schools are part of the public education system as they are
financed through public funds.
1
1
organizations, whose profits were obtained from public funds, to govern the
provision of education.2 Public education, on the other hand, remained a mainly
residual arena to the vast majority of families that could not afford private
education3 This two-tier system had generated segregation, stratification and
inequalities that students stood up against,4 claiming the State needed to be more
actively involved. They demanded the State provide free quality public education
and a stricter control over the funds the State transferred to privately owned
corporations involved in education.5
While a first response to protests was an educational reform passed in 2009—the
so-called General Educational Law6—it did not tackle the main issues students
sought to change. As a result, students went to the streets once again in 2011, this
time joined by higher education students. The main claim of the 2011
mobilizations was to prevent for-profit corporations having recourse to public
funds for education, access which was described as “the core of the education
system.”7 On January 26th 2015, Congress passed a bill which, among other things,
prohibited these private corporations from running schools profiting from public
2
Cristián Bellei & Cristian Cabalin, Chilean Students Movements: Sustained Struggle to Transform a
Market-oriented Educational System, 15 CURRENT ISSUES IN COMPARATIVE EDUCATION 113 (2013).
3 See generally, Natalia Angel-Cabo & Domingo Lovera Parmo, Latin American social
constitutionalism: courts and popular participation, in SOCIAL AND ECONOMIC RIGHTS IN THEORY AND
PRACTICE: CRITICAL INQUIRIES 85, 95-6 (Helena Alviar et al. eds. 2015).
4 See generally, Cristian Cabalin, Neoliberal education and student movements in Chile: inequalities
and malaise, 10 POLICY FUTURES IN EDUCATION 219 (2012); Donoso, Dynamics of change in Chile, supra
note 1, at 13-8.
5 Bellei & Cabalin, supra note 2, at 112-4.
6 Law 20370 (D. Of. 02 Jul. 2010).
7 FRANCISCO FIGUEROA, LLEGAMOS PARA QUEDARNOS. CRÓNICAS DE LA REVUELTA ESTUDIANTIL [WE ARE HERE TO
STAY. CHRONICLES OF THE STUDENT REVOLT] 17 (2013) (my translation).
2
funds.8 This law, a regulation that decisively weakened Pinochet’s educational
legacy, was possible because of massive political pressure that led to the
transformation of constitutional understanding. This new understanding was
precisely what the penguins first proposed as a constitutional reading in 2006.
Needless to say, the text of the Constitution remained unaltered.
I. Liberal constitutionalism: the context
All this was, of course, not easy to achieve not only because of all the formal (legal)
complexities a parliamentary decision of this significance involved, but mostly
because of the fact that it was on the streets, and not in a judicial chamber, where
constitutional matters were being addressed. It was common people, not lawyers
wearing suits or pretended experts, who were claiming what the correct
understanding of the Constitution was; it was thousands of students, not an elite
group of representatives, who were proposing a change in constitutional
understanding; it was through protests, not concept papers, that the constitution
was being shaped; and it was passion and emotions, not calm conversations, what
were informing constitutional comprehension.9
8
Law 20.845 (D. Of. 8 June 2015).
I have made these comparisons drawing on Adam Tomkins’ description of the “tenets of Legal
Constitutionalism.” ADAM TOMKINS, OUR REPUBLICAN CONSTITUTION 10-25 (2005).
9
3
Despite the prominent role that both direct participation of the people and
passions have played in politics and institution building,10 they have been largely
ignored,11 when not actively outlawed, by liberal theory.12 In fact, liberal theory
privileges representative democracy, as opposed to direct participation, and
reason, as opposed to passion, as the driving forces behind Western politicoconstitutional schemes. Indeed, the main thrust of liberal theory has been that of
obscuring the role of politics, sentiments, and that which is sacred in the
understanding of democracies, translating them into the constitutional order of
law, logical deduction and reason.13
Liberalism’s constitutional counterpart, liberal constitutionalism, is identified with
three core characteristics: (a) a written constitution, (b) provided with a set of
basic constitutional rights and other open-ended provisions, (c) whose
enforceability and definition depend, in the last instance, on some high court
decision. In this equation, the political commitments a community values the most
are replaced by legal documents and their reading is reserved to those who claim
to hold the professional expertise needed to understand (and explain) those lawlike provisions. Thus, the forum of politics—a forum normally deemed to be open
to all—gets transferred to judicial chambers where laypersons are seldom
10 ANDRÁS SAJÓ, CONSTITUTIONAL SENTIMENTS 11-4 (2011) (arguing reason and emotions function, and
have functioned, in an intertwined fashion in shaping our constitutional institutions).
11 MARTHA C. NUSSBAUM, POLITICAL EMOTIONS: WHY LOVE MATTERS FOR JUSTICE 4-5 (2013).
12 REBECCA KINGSTON, PUBLIC PASSION: RETHINKING THE GROUNDS FOR POLITICAL JUSTICE 5-6 (2011).
13 PAUL W. KAHN, POLITICAL THEOLOGY: FOUR NEW CHAPTERS ON THE CONCEPT OF SOVEREIGNTY 23-7 (2011).
See ALLAN C. HUTCHINSON, THE PROVINCE OF JURISPRUDENCE DEMOCRATIZED (2009). See also, STEVEN D.
SMITH, THE CONSTITUTION & THE PRIDE OF REASON (1998).
4
admitted. This has resulted in ‘juricentric constitutions’14 whose interpretation has
been colonized by judges, lawyers, courts and their allegedly impartial means of
decision.15 In fact this is what liberal constitutionalism has created: a model of
constitutional interpretation that under the banners of objectivity, determinacy
and progressivity,16 hides and privileges the hegemonic political understanding of
an elite who is driven by fear against popular pressure.17 Consequently, liberal
constitutionalism “limits the modes of political engagement to the constitutional”.18
Opposition to current constitutional understandings is to be channeled either
through the constitutional amendment process or accountability mechanism
already included in the constitutions.19 What about those means of contention that
fall outside? They are “rendered illegal, illegitimate or nonsensical.”20
14 Robert C. Post & Reva B. Siegel, Protecting the Constitution from the People: Juricentric Restrictions
on Section Five Power 78 IND. L.J. 1, 2 (2003) (“The juricentric Constitution imagines the judiciary as
the exclusive guardian of the Constitution. It allows the Court's coordinate branches to enforce the
Constitution only insofar as they enforce judicial interpretations of constitutional meaning …”).
15 “Liberal constitutionalism,” as professor Nadia Urbinati put it, “thought that the dualistic space of
citizens and representatives institutions produced by elections was the sine qua non of impartial
and competent lawmaking because it protected the deliberative setting from both the tyrannical
passions of the majority and the particular interests of factions.” NADIA URBINATI, REPRESENTATIVE
DEMOCRACY. PRINCIPLES & GENEALOGY 25 (2006). See also Allan C. Hutchinson & Joel Colón-Ríos,
What’s Democracy got to do with it? A Critique of Liberal Constitutionalism 5-6 (Comparative
Research in Law and Political Economy Research Paper 29 Vol. 3 No 05, 2007) (explaining liberal
constitutionalism’s obsession with permanence and its consequent suspicion of constituent
assemblies).
16 Allan C. Hutchinson, Waiting for Coraf (or the beatification of the Charter), 41 U. TORONTO L.J. 332,
332-52 (1991).
17 RAN HIRSCHL, TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM
38-49 (2004). See also Hutchinson, Waiting for Coraf, supra note 16, at 354-5.
18 Christopher May, The rule of law as the Grundnorm of the new constitutionalism, in NEW
CONSTITUTIONALISM AND WORLD ORDER 63, 69 (Stephen Gill & A. Claire Cutler eds. 2014).
19 Id.
20 Id. at 70.
5
Considering this constitutional background, it is no wonder elites in power felt
uncomfortable with the constitution being taken away from institutional
avenues,21 and with social protests as the main means to achieve this shift. As
Charles Tilly claimed, “[t]o this day, national authorities throughout the world
generally resist granting a legal right to demonstrate as such”.22 In fact, and
different from the right to associate and union rights, protests are regularly
deemed as a form of exercise of general rights “with police as the main
enforcers.”23 Governmental responses to many recent social protests movements,
ranging from severely restricting to criminalizing protests, are testimony of this.24
Take two similar, though distant, cases: student protests in Chile and Quebec.
Inspired, in part, by the massive student protests witnessed in Chile, Québécois
students went out to the streets en masse to complain about a proposed rise in
university tuition fees starting in the fall of 2012.25 Hundreds of arrests, most of
them illegal, were reported in both cases, all against a background of fierce police
brutality which included riot police forces entering into McGill campus for the first
21
To paraphrase MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS (1999).
CHARLES TILLY, REGIMES AND REPERTOIRES 191 (2006).
23 Id., at 191-2.
24 Legislation, narrowly directed at specific groups, opens wide spaces to question the fairness of
those measures and legitimacy of laws passed. See, JEREMY WALDRON, THE RULE OF LAW AND THE
MEASURE OF PROPERTY 12-24, 44-51 (2012) (discussing the alleged virtues of the Rule of Law
understood in a morally or substantive detached fashion).
25 See, Fédération étudiante universitaire du Québec, “La communauté universitaire solidaire
contre la hausse des frais de scolarité un plan de financement des universités sur le dos des
étudiantes et des étudiants”, March 30, 2011, http://feuq.qc.ca/spip.php?article195&lang=fr.
22
6
time since 196926 (a landmark year for student protests) and a 16-year-old student
shot dead by the police in Santiago, Chile.27 Governments have responded with
more (legal) violence by filing bills containing restrictive criminal laws—the most
brutal Sate intrusion. The Chilean government, for instance, submitted a bill where
it conceptualized public order as “social tranquility.”28 It also proposed to sanction
with up to three years imprisonment those who have “taken part, incited or
promoted disorder or any other act of force and violence through which: (iii) free
circulation of persons or vehicles were impeded or altered.”29 Anyone picketing on
the streets or, as vague as the terms of the proposed bill are, calling to protest
against governmental decisions (resulting in protests that may end in streets or
with bridges being blocked) could end up in prison. The National Assembly of
Québec did no less and passed Bill 78, an emergency law that—besides suspending
academic terms in progress—accorded authorities, particularly the police, ample
powers to prevent, regulate, alter, and dissolve demonstrations.30 The police
arrested 518 students taking part in protests only just five days after it was
passed.31
26
Student’s Society of McGill University, “SSMU Statement & Information Regarding November 10th
Riot Police on Campus”, November 11, 2011, http://ssmu.mcgill.ca/blog/2011/11/ssmustatement-information-regarding-november-10th-riot-police-on-campus/.
27 Chilean police officers dismissed after fatal shooting, BBC NEWS, August 30, 2011,
http://www.bbc.co.uk/news/world-latin-america-14717934
28 Gobierno de Chile, Mensaje No 196-359, September 27, 2011.
29 Id., at 12.
30 National Assembly of Québec, Bill 78 (2012, Chapter 12) “An Act to enable students to receive
instruction from the postsecondary institutions they attend,” May 18, 2012.
31 Jacqueline Kennelly, The Quebec student protests: challenging neoliberalism one pot at a time, 28
CRITICAL ARTS: SOUTH-NORTH CULTURAL & MEDIA STUDIES 135 (2014).
7
II. Social protests and constitutions: the argument
This dissertation is not about the Chilean (or Québécois) student protests
specifically, but more generally about the role that social protests play in
constitutional interpretation. Social protests, this work contends, are direct and
popular forms of interpreting constitutions, that is, forms of proposing a certain
comprehension of constitutions. Through protests—although certainly not only by
their means—the people (or the peoples) directly take over the struggle to define
constitutional contours. It is by means of protests that the people directly propose
a certain understanding of constitutions. As such, I shall insist, protests work as a
means for negotiating constitutional exposition. In this sense, protests as
constitutional interpretations are forms of power struggle or contentious politics;
they are aimed, as Tarrow put it, at “bring[ing] ordinary people into confrontation
with opponents, elites, or authorities,”32 as to how the constitution should be
understood. More specifically, citizens’ public displays through protests are a tool
through which expressions of popular will call into question a particular
understanding of constitutions that otherwise may have appeared to be obvious or
undisputed.33 Protests, therefore, perform the critical function of making explicit
the relations of power upon which current constitutional understanding have been
built, proposing a new alignment of the constitutional dimensions of power.34
32
SIDNEY TARROW, POWER IN MOVEMENT: SOCIAL MOVEMENTS AND CONTENTIOUS POLITICS 8 (2011 3rd ed.).
JUDITH BUTLER, NOTES TOWARD A PERFORMATIVE THEORY OF ASSEMBLY 1-2 (2015).
34 Id, at 6-11.
33
8
However, constitutional understandings proposed through protests alone are not
constitutional interpretations until after they take institutional form. It is only once
they take institutional form that (what before were) popular understanding of
constitutions become (properly speaking) constitutional interpretations. As I
argue in this work, it is by dialoguing with democratic institutions that popular
readings can be attributed to the people as a whole.
To do this, this work proceeds in a two-step argument. It will first explore the
constitutional legitimacy of protests as a means of political participation, and only
then it will move to present the way in which these constitutionally protected
means of participation can inform the understanding of constitutions. This is the
reason why this work envisions two kinds of relations between constitutions and
social protests. First, constitutions relate to social protests by (constitutionally)
shielding protests. Second, constitutions relate to social protests by becoming
objects of influence by popular contestations. This means that constitutions are
open to be interpreted not only by way of institutional mechanisms, say a piece of
legislation or a judicial opinion, but that they are also open to be construed in a
bottom-up fashion by the people resorting to non-institutional means of
participation, just what the Chilean students were doing when proposing how to
properly understand the education provisions of the Constitution.35 In fact, as I
shall insist later, popular constitutional interpretation requires a constant and
35 Where properly here stands for a politically attributable understanding, rather than a legal
fashion where meanings remain hidden and waiting to be correctly discovered. See also, Donoso,
Dynamics of change in Chile, supra note 1, at 21-3 (explaining the participatory bottom-up fashion
the Penguin Revolution had and its probable causes).
9
balanced interplay between institutional and non-institutional forms of
constitutional understanding—protests included. This work contends that social
protests that aim at constitutional interpretation interact, although in a tense
relation, with institutions. Rather than abandonment of institutional politics
(withdrawal), constitutional interpretation requires the people to engage with
institutions.36 This is far from a trivial condition and actually a key to differentiate
the sort of social protests this work draws upon.
As Chilean students were marching onto the street (again) in 2011, the globe was
witnessing large mobilizations in North Africa and massive street occupations in
Europe and North America. Almost every large, and global,37 city experienced
some sort of social protest during the years that followed 2010. In no particular
order, Cairo, New York, London, Madrid, Athens, Toronto, Moscow, Montreal,
Tokyo, and, more recently, Rio de Janeiro, were all cities where large political
protests took place. A remarkable indication of this wave was Time’s decision to
name The Protester as the Person of the Year in 2011.38
However, despite their phenomenological similitude, these protests were not all of
the same constitutional kind. In fact, for protesters taking part in some of these
mobilizations, the constitutional schemes in force in their communities were a
target they sought to overthrow. These protesters actually embraced the
36
See CHANTAL MOUFFE, AGONISTICS: THINKING THE WORLD POLITICALLY 163-89 (2013).
In Sassen’s global city framework, one of the facts that explains why protests occurring during
2010 and 2011 got so much attention was precisely because they were taking place in cities that
during ‘regular’ times signal the worldwide networks of economic globalization. SASKIA SASSEN, THE
GLOBAL CITY: NEW YORK, LONDON, TOKYO 3-5 (1991).
38 TIME, Dec. 14, 2011.
37
10
constituent power (and in some cases were successful in doing so). For them,
change was not just a matter of interpretation, but of decisively altering the locus
of constituent power and political legitimacy. These protesters had already lost
faith in the possibilities of bringing about change under the constitutional/legal
systems they were living under.39
For many other protesters, on the other hand, the constitutional schemes in force
at the time they were mobilizing were a different sort of target. They saw
constitutions (in some cases unconsciously) as open grounds inviting popular
readings of what were common, yet essentially contested, commitments.40 They
still believed these common commitments were open to welcome what so far were
(recall the Chilean students) off-the-wall interpretations of the Constitution.41 Put
differently, these were protesters who, paraphrasing Robert Cover, kept faith in
their constitutional schemes, for they saw these schemes as not only showing “the
‘is’ and the ‘ought,’ but the ‘is,’ the ‘ought’ and the ‘what might be’.”42
Thus seen, the kind of social protests I am interested in here are those that take
place within a constitutional scheme protesters do not seek to replace nor
overthrow, but to influence and shape.43 This work argues constitutional schemes
39
JACK M. BALKIN, CONSTITUTIONAL REDEMPTION. POLITICAL FAITH IN AN UNJUST WORLD (2011).
GRÉGOIRE C. N. WEBBER, THE NEGOTIABLE CONSTITUTION. ON THE LIMITATION OF RIGHTS 1 (2009).
41 Jack M. Balkin, How Social Movements Change (or Fail to Change) the Constitution: The Case of the
New Departure, 39 SUFFOLK U. L. REV. 27, 52 (2005-2006).
42 I took Robert Cover’s citation from Gerald Torres & Lani Guinier, The Constitutional Imaginary:
just stories about we the people, 71 MD. L. REV. 1052, 1052 (2012).
43 As professor Nadia Urbinati recently put it, these waves of protests were not aimed at
establishing direct democracies around the globe, but actually at controlling what their
representatives were doing. Waves of protests, in other words, were not directed at withering
institutions away, but at shaping political opinions and “experiment[ing] with new styles of
40
11
are open to be interpreted by means of social protests and shows how the people
themselves can play an important role in proposing their own readings of
constitutions. However, precisely because this is a work on constitutional
interpretation it does not, because it cannot, disregard democratic institutions.
Rather, as I will argue by the end of this dissertation, institutions prove crucial as
they represent a common ground where popular constitutional understandings
advanced through protests are expounded, tested and, eventually, endorsed.44 This
is the moment, I shall contend, when a popular reading can be attributed to the
people as a whole.
This is also the moment that signals social protests’ success. At a procedural level,
social protests succeed when they increase the bargaining power of those who
resort to the streets.45 Precisely because constitutional meanings are negotiated
among different (both institutional and noninstitutional) actors, the level of
bargaining power that protesters enjoy indicates the probability of having their
popular views considered on-the-wall readings of the constitution. At a
substantive level, social protests succeed when they are able to reshape the
meaning of constitutional principles and consequently that of the practices
representation.” Nadia Urbinati, A Revolt against Intermediary Bodies, 22 CONSTELLATIONS 477, 478
(2015).
44 MICHAEL WALZER, POLITICS AND PASSION. TOWARD A MORE EGALITARIAN LIBERALISM (2004) (“Civil
society cannot become a home for either freedom or pluralism without state action.”).
45 Paul Burnstein et al., The Success of Political Movements: A Bargaining Perspective, in THE POLITICS
OF SOCIAL PROTEST: COMPARATIVE PERSPECTIVES ON STATES AND SOCIAL MOVEMENTS 275, 279-80 (J. Craig
Jenkins & Bert Klandermans eds. 1995).
12
governed by those very same principles.46 This occurs when, as a result of
mobilizing, “political and institutional circumstances” combined transform
formerly implausible constitutional interpretations into “natural and completely
obvious” constitutional claims, therefore commanding legislation that follows.47
III. Dissertation plan
The plan of the dissertation is as follows. Chapter 1 takes and explores insights
from the sociology of social movements. The aim of this chapter is twofold. First, it
seeks to enrich the all-too-formal understanding of politics in constitutional law
(and law, more generally). It points out the different forms social movements—and
particularly new social movements—have resorted to in order to expand both the
concept of politics and democracy. Whereas politics used to be restricted to the
formal avenues of power and democracy meant participation through delegation,
new social movements included non-institutional means of participation and
forms of direct action. Social movements came to challenge “the boundaries of
institutional politics.”48
46
See Jack M. Balkin & Reva B. Siegel, Principles, Practices, and Social Movements, 154 U. PA. L. REV.
927 (2006).
47 Balkin, How Social Movements Change (or Fail to Change) the Constitution, supra note 41, at 51-2;
Balkin & Siegel, Principles, Practices, and Social Movements, supra note 46, at 929 (at the same time,
“[p]rinciples once uncontroversially accepted become counterintuitive and produce uncomfortable
results as they are applied to new situations and problems…”).
48 Claus Offe, New Social Movements: Challenging the Boundaries of Institutional Politics, 52 SOCIAL
MOVEMENTS 817 (1985).
13
Second, relying on the same literature, this chapter seeks to show that social
movements accept the State, its institutions, its formal avenues, and its extremely
detailed procedures of will-formation as spaces of conquest, struggle,
disagreement, deliberation, and decision. In other words, social movements do not
replace formal avenues of politics and institutions with non-institutional forms
and pure direct democracy, but rather complement them. Chapter 1 wraps up by
identifying social protests as one of the non-institutional means popular
movements can resort to, distinguishing social protests from civil disobedience
and drawing some main characteristics that social protests exhibit that may inform
an adequate constitutional understanding of these phenomena.
Chapter 2 builds upon the distinction between protest events that occur within a
constitutional scheme that protesters do not seek to overthrow and those events
that aim at enacting new constitutions. As a matter of fact, and actually as a matter
of constitutional fact, some of the protests that began in 2010 resulted in putting
new constitutions in place. However, other protests, most notably those that took
place in the West, did not.
This constitutional distinction, as I call it, is relevant, for it will allow to distinguish
the setting where popular constitutional interpretation takes place. Indeed, this
distinction permits differentiating among protest events that, although sharing the
same causes for discontent and some phenomenological manifestations (people on
the streets picketing, blocking, camping, and so on), are of a varied constitutional
14
nature.49 While some of these protests, such as those the ‘Arab Spring’ produced,
were radical claims seeking to activate the constituent power, others, such as those
of the ‘Occupy’ movement and Chilean students, played within the constitutional
rules of the game.50 In other words, the former protesters sought to alter the
constitutional landscape by establishing new constitutions. It is of course hard to
talk in this context of constitutional interpretation, rather than that of constitution
making.51 The latter sort of protests, on the other hand, sought to alter the
constitutional landscape by influencing the understanding of constitutions, along
with political regimes, that remained in place. In this last scenario, it was the
possibility of advancing a popular interpretation, and therefore interaction with
institutions, what drove mobilizations.52
The following three chapters explain the two-direction flow between social
protests and constitutional law. As I explained above, constitutions relate to social
49
See, JOEL COLÓN-RÍOS, WEAK CONSTITUTIONALISM: DEMOCRATIC LEGITIMACY AND THE QUESTION OF
CONSTITUENT POWER 175 (2012) (noticing the execution of constituent power may be, and actually
need to be, triggered by “informal political practices like … street assemblies, and mass protests.”).
Playing by the rules of the game entails, as the very nature of challenging movements under
scrutiny here, contesting and influencing those very same rules and not only the understanding of
those rules, but eventually their institutional manifestations.
51 See, WEBBER, THE NEGOTIABLE CONSTITUTION, supra note 40, at 43-52.
52 Two caveats should be mentioned here. First, it is true that some of these mobilizations, most
notably those of the ‘Occupy’ and European indignados, refused to pose before authorities any
specific claim and to engage in any sort of dialogue. However, from a constitutional viewpoint they
did not end up producing new constitutions. I explain this in more detail in Chapters 1, 2 and 5.
Second, with the advantage of time we can now see, at least in the European experience, that those
movements that refused to engage with institutions were not actually seeking to establish a parallel
polity, but have those institutions account for the people’s actual needs. The rise of alternative
political organizations such as Syriza in Greece or Podemos in Spain tells this. Of course, I am not
saying that these very same protest movements transformed into political parties, but that these
political organizations were able to read the indignados political claims and give them a political
voice and (a more tangible) impact. Lobera talks of “certain continuities between the 15-M and the
emergence of new parties …”. Josep Lobera, De movimientos a partidos. La cristalización electoral de
la protesta [From movements to political parties. The electoral crystallization of protest], 24 REVISTA
ESPAÑOLA DE SOCIOLOGÍA [SPANISH JOURNAL OF SOCIOLOGY] 97 (2015).
50
15
protests by (constitutionally, and up to a point legally) shielding protests, on the
one hand, and by becoming objects of influence by popular contestations, on the
other. Chapters 3 and 4 explore how constitutions (should) protect protests.
Chapter 3 presents what I call the constitutional foundations of the right to
protests. As noted above, this work relates to protests that aim at proposing their
own constitutional reading, meanwhile assuming “the regime’s remaining in
place.”53 Therefore, the chapter begins by emphasizing that the right to protest I
am talking about here is a constitutional (=positive) right. It is a right composed by
different constitutional rights which confer its bearer a variety of subjective rights
to something, liberties and powers.54 The freedoms the right to protest is based on
are the freedoms of expression and of assembly. Although they are analyzed in one
single chapter, they are two distinct freedoms. While freedom of expression is
mainly concerned with the protection of speech, particularly when taking place in
public spaces, freedom of assembly emphasizes the protection of public
gatherings: the right we have to join others in reunions that might, or might not,
have speech (in the sense that freedom of expression understands it) involved. As
it will be explained, this chapter contends social protests are not to be exclusively
framed as a right to speak in a public forum, for this approach overlooks the fact
53
Philip Pettit, Legitimacy and Justice in Republican Perspective, 65 CURRENT LEGAL PROBLEMS 59, 62
(2012).
54 ROBERT ALEXY, A THEORY OF CONSTITUTIONAL RIGHTS 120 (Julian Rivers trans., 2010).
16
that assemblies need their own ‘breathing room.’ Put differently, it asks not to
collapse freedom of assembly into freedom of expression.55
Although an important part of this chapter deals with doctrinal approaches to both
freedoms of expression and of assembly, they are also illustrated through different
judicial opinions ruled by different courts of different jurisdictions. Rather than
intended to expose the up-to-date judicial rulings regarding the right to protest,
these decisions—aimed at expanding, rather than shrinking, the protection of
avenues for political participation—show what could be called the best practices
to protect protests that are both (at the same time) expressions and public
gatherings.
However, the fact that there are what might be called best practices, and that along
with them there are not-so-good practices, is a very telling consequence of
conceiving the right to protest as a positive right: its need for detailing. Charts
normally assert rights in general and vague terms that invite their regulation,
either to expand their force (not the most frequent scenario) or to limit their
extension (the practice that many governments, such as the Quebec legislature and
more recently Spain, mainly followed after the wave of protests that started in
2010). As I explain below, the State and its institutions are both a friend and foe of
rights.56
55
See, Tabatha Abu El-Haj, All Assemble: Order and Disorder in Law, Politics, and Culture, 16 J. CONST.
L. 949, 953-63 (2014).
56 MARTIN LOUGHLIN, FOUNDATIONS OF PUBLIC LAW 285-6 (2010).
17
Chapter 4 invites to build on the traditional doctrinal approach—as presented in
Chapter 3—and consider other rights that are relevant in framing the right to
protests. This importance can be seen as twofold. First, these rights show
foundational freedoms (such as the freedoms of expression and of assembly) are
relevant but not conclusive in constitutionally rooting the right to protest. Second,
this approach is also relevant because it sheds some light on certain regulations
(micromanagement)57 that, precisely because we usually stop short of considering
other rights, may be useful in further shielding the right to protest. By resorting to
urban studies, this chapter questions the current utility—in terms of being able to
expand popular participation—of the so-called public forum doctrine. Taking into
consideration that almost every important political space has now been privatized,
the first section of this chapter calls to look at these developments with suspicion
and caution. If cities are, as experience shows they are, places where the locus of
political power displays, then the kind of city we have (particularly its spatial
regulations) “cannot be divorced from the question of what kind of people we want
to be …”.58
The second section of this chapter examines the right to privacy. It delineates its
understanding in public spaces and explores its utility for protests. Although the
right to privacy is usually understood to be limited to private spaces, this chapter
presents a more ample conception and prefers to ask what harms this right should
57
Abu El-Haj, All Assemble, supra note 55, at 1029-30.
58 DAVID HARVEY, REBEL CITIES: FROM THE RIGHT TO THE CITY TO THE URBAN REVOLUTION 4 (2012).
18
protect us from.59 This approach to privacy better addresses situations of
surveillance and prohibitions of anonymity in public spaces, which eventually may
lead to shrinking public participation, thus (sometimes directly, sometimes
indirectly) affecting the foundations of the right to protest.
Chapter 5 approaches the relation between constitutions and protests from the
other perspective, the side of the people. It inquires whether constitutional theory,
despite its emphasis on forms and institutions, courts and robes, and judicial
opinions and dissents, is ready to accept a popular involvement in constitutional
exposition. The affirmative answer to this question is found in what is called
popular constitutionalism. In a nutshell, popular constitutionalism—in its many
variants—aims to rescue the crucial role the people should play when it comes
time to define the boundaries of constitutional commitments. At the same time, it
defies the comprehension of constitutions as a form of law—and nothing more
than a law. As one of its main expositors has put it, popular constitutionalism
contends the understanding of constitutions as a species of law and thus set aside
from the people.60 Rather than a document reserved to be exclusively read by a
certain elite trained, if not domesticated, in law, that is, lawyers and judges,
popular constitutionalism claims constitutions to be a layman’s document.61
Constitutions, therefore, are to be taken back to the people themselves.62
59
DANIEL J. SOLOVE, UNDERSTANDING PRIVACY (2008).
LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW 7 (2004).
61 Id. at 207.
62 Id. at 247-8.
60
19
That fact that popular constitutionalism claims a key role for the people as final
arbiters of constitutional understanding does not mean that institutions should be
disregarded. Indeed, as I show in this chapter, every variant of popular
constitutionalism admits the need of having an institutional avenue where these
popular readings can be directed to. One trend of popular constitutionalism, in
fact, believes it is possible to reconcile judicial supremacy with the people as final
constitutional authorities. Another denies such a central place for courts (the very
principle popular constitutionalism reacted against), thus proposing to look at
representative branches, either the parliament or the executive. There are of
course those who believe none of the representative branches should have a
paramount position when it comes to defining constitutional boundaries and thus
prefer a sort of horizontality between all branches. At any rate, as I claimed before,
constitutional
interpretation,
even
under
the
auspices
of
popular
constitutionalism, requires institutions. It insists that constitutional interpretation
is to consider the “vertical constitutional relationships both among citizens
themselves and between citizens and the system of representative democracy
within which they live.”63
There are mainly two reasons that merit attention in highlighting the relation
between institutions and popular readings of constitutions: instrumental and
normative reasons. I describe these reasons at the beginning of Chapter 6.
63
Stephen Tierney, Whose political Constitution? Citizens and referendums, 14 GERMAN L. J. 2185,
2187 (2013).
20
Instrumental reasons to have popular readings of constitutions institutionalized
range from considerations of publicity to conceiving authoritative decisions as a
means to shield (provided the immanency of democratic decisions) changes once
they have been non-institutionally achieved. However, there is a normative reason
as well. As I argue in Chapter 6, constitutional interpretation is, just as
representative democracy, a diarchy. It requires the interplay, tense and disputed
at times, between non-institutional forms of constitutional interpretation and
institutional avenues.64 These two avenues do not merge, they do not overlap one
other, and no avenue gains priority over the other.65 Rather, they act in concert or
in what Guinier and Torres have called dynamic equilibrium.66
The value this interplay serves is democratic equality—as understood in the
specific context of constitutional interpretation. If constitutions express common
commitments, then we need to find a way to subject its readings and
interpretations to fora accessible to all. Chapter 6 explains that this can be
achieved by asking social protests to direct their popular understandings to
institutions that are open to all to consider and deliberate around these
interpretations; thereby, protests do not replace institutions and institutions do
64
NADIA URBINATI, DEMOCRACY DISFIGURED: OPINION, TRUTH, AND THE PEOPLE 1-5 (2014).
When explaining the main features of current constitutional democratic orders, James Tully
talked of the ‘equiprimordial’ balance between the principles of democratic freedom (popular
sovereignty) and the Rule of Law. James Tully, The Unfreedom of the Moderns in Comparison to Their
Ideals of Constitutional Democracy, 65 MOD. L. REV. 204, 207 (2002).
66 Lani Guinier & Gerald Torres, Changing the Wind: Notes Toward a Demosprudence of Law and
Social Movements, 123 YALE L. J. 2740, 2749 (2014).
65
21
not replace protests.67 It is only then, that is to say, only after protesters have
subjected their readings to the consideration of the rest, we can talk of a genuine
constitutional interpretation, an understanding that can be attributed to the
people as a whole.68
What institution should social protest direct its popular readings to? This is a fairly
strategic choice. As the literature on social movements shows, mobilizations
usually target (not always successfully) those institutions that are more likely to
deliver the kinds of benefits a specific social movement pursues. However, when
talking of constitutional interpretations that can be attributed to the people as a
whole, I am thinking not in specific benefits, but in democratically contributing to
define the proper understanding of constitutions. Social protest movements aimed
at interpreting (either consciously or unconsciously) the constitution do not
operate as what the literature calls interests groups,69 but rather as publicoriented political movements whose readings they want all to accept.
67
As Schmitt put it, “[i]t is precisely in a democracy that the people cannot become the
administrative apparatus and a mere state ‘organ’.” CARL SCHMITT, CONSTITUTIONAL THEORY 271
(Jeffrey Seitzer trans. Duke University Press 2008) (1928). And he continues: “Just as a party cannot
transform itself into an official organ without losing its party character, so public opinion cannot
permit its transformation into an official jurisdiction …” (at 275).
68 In other words, I distance myself from the work of others who believe the people as a whole act
only at certain specific moments of democratic life—which are singled out as ‘constitutional
moments’ and ‘higher lawmaking’ instances. BRUCE ACKERMAN, 1 WE THE PEOPLE: FOUNDATIONS 6
(1991). Whereas these readings suggest regular and institutional ‘political’ times cannot revisit
decisions reached through constitutional moments (Ackerman talks of overturning the “considered
judgments previously reached by the people”), I contend constituted institutions are—in this
interaction I am talking about—suitable to permit the development and deepening of our initial
(but inevitably left opened) constitutional commitments. Moreover, these developments can also be
attributed to the people, and not just to a government or a constituted agency or power. However,
what I also argue in Chapter 6 is that the legitimacy of these ‘regular’ decisions can also be
evaluated.
69 See, Guinier & Torres, Changing the Wind, supra note 66, at 2756-62
22
***
Liberal constitutionalism affirms the constituent power of the people is exhausted
once a new constitution is in place.70 It also teaches that constitutions are to be
read and implemented considering their mixture of politics and law. However, this
is a compound where law, and more specifically courts, ends up having the last
word as to constitutional meaning. Furthermore, this is also a mix where politics is
to be mainly defined by representative (formal and institutional) bodies. This is
why this work focuses on protests, for social protests—compared to lobbyism,
legal battles, citizen representatives, and forms of self-authorized representation
other than protests—are the most tangible, visible and disruptive responses to the
hegemony of liberal constitutionalism. Legal governmental reactions against
recent waves of upheavals show this to be so. These reactions against social
protests are of course part of a larger picture: liberal constitutionalism’s antipathy
toward citizen participation,71 a form of constitutionalism incapable of dealing
with disagreement72 and appreciating conflict73 and backlash as legitimate
practices of norm contestation.74 This work proposes a different understanding of
constitutions, one that is more political and less legal, and whose contours
therefore cannot be hidden under what an elite claims to be professional expertise
70
Joel Colón-Ríos & Allan C. Hutchinson, Democracy and Revolution: An Enduring Relationship? 89
DENVER U. L. REV. 593, 607 (2012).
71 Allan C. Hutchinson & Joel Colón-Ríos, Democracy and Constitutional Change, 58 THEORIA 43
(2011). See also, FÉLIX OVEJERO, ¿IDIOTAS O CIUDADANOS? EL 15-M Y LA TEORÍA DE LA DEMOCRACIA 47-56
[IDIOTS OR CITIZENS? THE 15-M AND DEMOCRATIC THEORY] (2013).
72 JEREMY WALDRON, THE DIGNITY OF LEGISLATION 154-5 (1999).
73 Torres & Guinier, The Constitutional Imaginary, supra note 42, at 1054.
74 Robert C. Post & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 HARV. C.R.C.L. L. REV. 373, 382 ff. (2007).
23
nor limited to institutional avenues. By opening constitutions to popular
interpretations and accepting non-institutional means of participation as suitable
to propose constitutional meanings, this work argues it is up to the people to
constitute themselves as a genuine community of consent.75 A community that,
when not considered, decisively affects the legitimacy of constitutional
understandings thus achieved.76
75
Guinier & Torres, Changing the Wind, supra note 66, at 2744.
Torres & Guinier, The Constitutional Imaginary, supra note 42, at 1054-5; Tully, The Unfreedom of
the Moderns, supra note 65, at 208 (“The constitution or the principles justifying it cannot be seen
as a permanent foundation or framework which underlies democratic debate and legislation. They
must be reciprocally subject to legitimation through practices of the democratic exchange of
reasons by those subject to them over time.”).
76
24
CHAPTER 1
CONSTITUTIONAL NOTES FROM THE SOCIOLOGY OF MOVEMENTS
I. Social movements and politics outside the institutions
II. Who are the addressees? Presupposing the State
A. States, institutions and social movements
B. Political context
III. Social movements and social protests: some constitutional notes
A. Outside institutional channels
B. Challenging nature
C. Joint action
D. Continuity
Introduction
Social protest movements positing political issues on the streets have marked the
second decade of the twenty-first century. From the Spanish indignados and Greek
aganaktismenoi to Wall Street occupiers, from Chilean students to their Québécois
fellows, from ‘Arab spring’ protesters to Israeli tent protesters, social movements
have become, to quote Time Magazine, “the primer makers of history.”1
1
TIME, Dec. 26, 2011.
25
Despite this politically transcendent role social protest movements play,
governmental authorities tend invariably to label protests as illegitimate and
undemocratic interventions.2 Emphasizing formal and institutional avenues of
participation (i.e. elections), authorities approach social protests as threats to the
State and blame their (allegedly) poor deliberative capacity. Protests are thus
presented as menace to democracy itself.
Unsurprisingly, different liberal governments around the globe have chosen to
propose, and in several cases to pass, legislation granting the police ample powers
to confront protesters, thus diminishing the people’s resort to non-institutional
means of participation. Eventually, repression (both symbolic and material)
becomes the regular answer—as the U.N. Special Rapporteur has noticed.3
This chapter starts from these contentions and seeks answers from the sociology
of social movements. Sociologists, in fact, have already discussed the contribution
social movements have made to democracy. The first section (I) will briefly discuss
social movements. In spite of the fact the concept of social movements has proven
to be much contested, there are nonetheless some main traits emerging from
scholarly observation that I will sum up in this first part.4 I will do this in order to
2
See, COSTAS DOUZINAS, PHILOSOPHY AND RESISTANCE IN THE CRISIS 9 (2013) (noting that although Arab,
Greek and Spanish, as well as other mobilizations, have differences in scope and intensity, they all
provoked similar systemic and political reactions).
3 See, Human Rights Council, Report of the Special Rapporteur on the rights to freedom of peaceful
assembly and of association, Maina Kiai, U.N. Doc. A/HRC/20/27, May 21, 2012, para. 63
(remembering positive obligations for States include to refrain from violence in controlling
protests) and 84 a) (calling States not to criminalize those who exercise their right to assembly and
association).
4 By placing the emphasis on the movements’ external face (protests) I will sidestep, except for a
few comments, the debate on the internal conditions social movements must meet to succeed—an
26
underscore that non-institutional instances of participation have become regular
forms of political participation—very much stimulated the more States
democratize.5 This, as I will note, has contributed to expand both the concept of
politics and that of representative democracy. Ignoring these contributions by
exclusively highlighting the abstract violence involved—very much the strategy
followed by liberal governments—“combines the defence of the status quo with
historical ignorance.”6
In the second part (II), I shall underscore an underlying agreement between
sociological analyses on social movements, namely that social movements
presuppose the State and its institutions—despite the fact they mean to contest
and, when possible, shape them.7 Although I will leave revolutionary (social)
movements—which of course exist—aside, I will consider certain qualifications
that the new wave of social protest movements should force us to consider. These
new movements, although not nihilistic, have decided not to address their
demands to the State—and in fact not to pose any demand at all.
I shall finalize (III) by stressing social movements’ most relevant features that need
to be considered for a constitutional law assessment of protests. This means, I
emphasis upon which ‘Resource Mobilization Theory’ has built up its approach. GRAEME CHESTERS &
IAN WELSH, SOCIAL MOVEMENTS: THE KEY CONCEPTS 1-21 (2011).
5 As will be noted below, social movements (including their large array of non-institutional
strategies) tend to increase as democratic conditions improve.
6 DOUZINAS, PHILOSOPHY AND RESISTANCE, supra note 2, at 139.
7 The fact social movements presuppose the State, and not a certain form of polity, as I will add
below, should not obscure movements whose main target are hegemonic social relations (i.e.
identity claims).
27
insist, that I won’t provide a definition of social protest, but highlight its main
characteristics as they prove useful for further constitutional assessment.
I. Social movements and politics outside the institutions
“You say you’ll change the Constitution,
Well you know,
We’d all love to change your head.”
“But when you talk about destruction,
Don’t you know that you can count me out”
REVOLUTION (Lennon-McCartney, 1968).
What a social movement is has proved to be an elusive and much contested
question.8 Rather than suggesting narrow and insufficient concepts, observers
have focused on its distinctive reasons, notes and characteristics—giving place to
different scholarly approaches.9 In fact, there are several branches of research
depending on what observers consider to be social movements’ distinctive causes
and features.10 However prolific this literature has been, the main questions that
8
CHESTERS & WELSH, SOCIAL MOVEMENTS, supra note 4, at 1.
But see, Mario Diani, The Concept of Social Movements, 40 SOC. REV. 1 (1992) (arguing there is
sufficient common ground among different approaches to suggest a workable conceptualization).
10 As authors of one the most complete companions on social movements have noted, “no single
volume [] provides in-depth, synthetic examinations of a comprehensive set of movement-related
topics and issues in fashion that reflects and embodies the growing internationalization of social
movement scholarship.” David A. Snow et al., Mapping the Terrain, in THE BLACKWELL COMPANION TO
9
28
have driven these inquiries have been turning around the why and the how of
mobilizations—also denoting different theoretical backgrounds (emphasis on
agency or structural conditions) and frames of analysis (theoretical or empirical,
both being local, national and international) of intellectual traditions.11 Though
history and experience have shown no sharp distinction exists between these two
approaches, mobilizations seem to in fact respond to a mixture of reasons and
overlapping factors.12 Differences remain in both the analytical and scholarly
approach that will often emphasize one over the other.
Some studies have paid more attention to the how of social movements. This
approach has been predominantly dominated by the Resource Mobilization Theory
(RMT), which put the focus “mainly on the organizational resources and the
rational orientation of political actors.”13 Charles Tilly, for instance, has argued that
a look at history will allow us to appreciate the characteristics social movements
have deployed to become relevant political actors.14 The main characteristics—
Tilly contends—that transform a “mere” form collective action into a social
movement are precisely those related to their internal organization. In fact, social
movements are, and have been, characterized—at least since 1750—by three main
features: (a) a “sustained, organized public effort making collective claims on
SOCIAL MOVEMENTS 3, 5 (David A. Snow et. al. eds. 2007). I certainly do not intend to do so here, but
merely to highlight some main features that will allow a better constitutional comprehension of
them.
11 Id. at 3.
12 Id. at 4
13 CHESTERS & WELSH, SOCIAL MOVEMENTS, supra 4, at 7.
14 CHARLES TILLY, SOCIAL MOVEMENTS, 1768-2004 (2004).
29
target authorities” transcending one-time petitions;15 (b) an employment of a large
array of methods of political incidence;16 and (c) a public display that shows the
addressees (whoever they may be) the worthiness, unity, numbers, and
commitment of those taking part in the mobilizations.17 The effective transmission
of this message, as Tilly argued, is the payoff of those mobilizing but also one of the
most difficult obstacles to overcome:
The actual work of organizers consists recurrently of patching together
provisional coalitions, negotiating which of the multiple agendas participants
bring with them will find public voice in their collective action, suppressing
risky tactics, and above all hiding backstage struggle from public view.18
Therefore, the fact of being a collectivity does not exhaust the main features of
social movements, for their main difference with other forms of collective behavior
is precisely their organized character—“the fact that the existence of social
movement activity implies some degree of organization.”19 As Tilly himself
elaborated in the early 1990s, “[a] social movement is not a group, a quasi-group,
or a group-like composite, but a complex form of social interaction.”20 On the
currency of recent mobilizations it is important to highlight the special role new
technologies have played. For as Manuel Castells has noted, social movements have
15
Id. at 3.
Id. at 4.
17 Id.
18 Charles Tilly, Social movements and (all sorts of) other political interactions – local, national, and
international – including identities, 27 THEORY & SOC’Y 453, 468 (1998).
19 David A. Snow et al., Mapping the Terrain, supra note 10, at 10.
20 Charles Tilly, Social Movements as Historically Specific Clusters of Political Performances, 38
BERKELEY J. SOC. 1, 5 (1993-1994).
16
30
found in the Internet new and fascinating tools to overcome the costs of collective
action.21 Although physical presence in the urban space can certainly not be
replaced, cyberspace has opened new (radically autonomous, independent and
uncoerced) avenues for mobilizing emotions towards a common cause,22
deliberating,23 exchanging information, and building common meanings.24 What
recent mobilizations have shown—Castells argues—is that today we witness a
hybrid public place, both digital and urban.25
To sum up, the approach chosen by RMT led them to ask (a) why people join social
movements, (b) how those social movements are organized—and how a given
form of organization may either promote or impede their success26—, and, finally,
(c) what are the conditions that, with all facts considered, present the most
favorable scenario to a certain form of collective action.27 Detailing this last
condition, RMT developed the concept of Political Opportunity Structure, the
political and institutional environments—the argument goes—that influence the
way people mobilizing define their organization, strategies and objectives to be
21
MANUEL CASTELLS, NETWORKS OF OUTRAGE AND HOPE: SOCIAL MOVEMENTS IN THE INTERNET AGE (2012).
As the example of Tunisia and Egypt showed, protesters used the Internet to air, and in this way
communicate, the brutal repression with which the challenged regime first responded. Id. at 22-4.
23 For its great significance Castells mentions the case of Iceland, where a new Constitution
(eventually blocked by traditional political parties) was drafted. As he argues, the Constitutional
Assembly Council “received online and offline 16,000 suggestions and comments that were debated
on the social networks … the final constitutional bill was literally produce through crowdsourcing.”
Id. at 38-42.
24 Id. 1-3, 9-12.
25 Id. at 45.
26 This is what the literature has called Social Movement Organizations. Andrew G. Walder, Political
Sociology and Social Movements, 35 ANN. REV. SOC. 393, 404-5 (2009).
27 CHESTERS & WELSH, SOCIAL MOVEMENTS, supra 4, at 9. I will return later to this third stance on
political context to suggest it is a transversal factor, that is, not that it is an overlap between the
both approaches, but that it influences both the how and the why of social movements.
22
31
pursued—that is, a rational choice as to when mobilize.28 RMT centered its
attention on the institutional channels modern States open for the people’s
involvement; the more open these channels are, the more likely grievances will be
manifested—and vice versa.29
A second set of studies has put the emphasis on the why, allegedly the kind of
reasons RMT did not consider in its scheme. In fact, as Chesters and Welsh
summarize, RMT had been criticized for being indifferent to the political demands
social movements advanced, overemphasizing the individual’s rational and
economic calculations, and placing too much attention on the politico-institutional
arena, thus reducing the terrain in which social movements act.30 New Social
Movements (NSM) scholars instead contend “modern social movements provide
avenues for the development of new values and identities, as well as novel
interpretations of social life, revitalizing a decaying public sphere,”31 thus
pluralizing the actors that intervene, the realm where they participate, and the
objectives they seek.32 In this sense they are new movements.33
28
Sidney Tarrow, States and Opportunities: The political structuring of social movements, in
COMPARATIVE PERSPECTIVES ON SOCIAL MOVEMENTS. POLITICAL OPPORTUNITIES, MOBILIZING STRUCTURES, AND
CULTURAL FRAMINGS 41 (Doug McAdam et al., eds 1996).
29 CHESTERS & WELSH, SOCIAL MOVEMENTS, supra 4, at 136. See also, Edwin Amenta & Michael Young,
Democratic States and Social movements: Theoretical Arguments and Hypotheses, 46 SOC. PROBS. 153
(1999) (arguing States influence social movements, and that democratic States tend to open larger
avenues to public contestation, thus encouraging social movements as they see the State answering
their demands).
30 CHESTERS & WELSH, SOCIAL MOVEMENTS, supra 4, at 10.
31 Kenneth H. Tucker, How New are the New Social Movements? 8 THEORY, CULTURE & SOC’Y 75 (1991).
32 CHESTERS & WELSH, SOCIAL MOVEMENTS, supra 4, at 12-3.
33 Craig Calhoun, “New Social Movements” of the Early Nineteenth Century, 17 SOC. SCI. HIST. 385
(1993) (contending these movements began in late eighteenth and early nineteenth centuries).
32
In stark opposition to the all-too-centered-in-the-State approach taken by RMT
scholars, NSM advocates focus their attention in non-institutional avenues and in
movements aimed at identity-formation,34 some of them operating under a
completely different rationale (non-hierarchical and contesting of existing
authorities) compared to the cost-benefit analysis that pervades RMT.35
In his seminal piece on NSM, Claus Offe underscored the fact citizens taking part in
NSM were eager to have a more direct control on policies, a path they start
traveling by resorting to “means that are seen frequently to be incompatible with
the maintenance of the institutional order of the polity.”36 New issues, claims and
areas NSM politicize(d) go hand in hand with these new forms of participation,
which are “not constrained by the channels of representative-bureaucratic political
institutions”37 and which are defined by a new form of understanding politics. This
‘new paradigm’ of participation, Offe argues, cannot be framed within the liberal
tradition that emphasizes a strict distinction between private and public spheres,
this latter to be shaped exclusively through representative instances (politics). For
as NSM scholars note, the line dividing these spheres begins to blur as politics is
34
Nella Van Dyke et al., The Target of social Movements: Beyond a focus on the State, in RESEARCH IN
SOCIAL MOVEMENTS, CONFLICTS AND CHANGE VOL. 25, 27 (Daniel J. Myers and Daniel M. Cress eds. 2004)
(“public protest is also used to shape public opinion, identities, and cultural practices and to
pressure authorities in institutional arenas not directly linked to the state.”). As I will note below,
these contentions may also have an impact in the way the State finally receives demands posed by
social groups before not considered legitimate interlocutors, or not noticed at all.
35 Jean L. Cohen, Strategy or Identity: New Theoretical Paradigms and Contemporary Social
Movements, 52 SOC. RES. 663, 675-89 (1985). But see, Diani, The Concept of Social Movements, supra
note 9 (arguing non-institutional politics should not be considered as one of the basic components
of social movements).
36 Claus Offe, New Social Movements: Challenging the Boundaries of Institutional Politics, 52 SOC. RES.
817, 817-8 (1985).
37 Id. at 820.
33
extended to new matters previously thought to be private.38 Thus, Offe contends,
NSM create a third sphere—one that is neither private nor public—but
which consists in collectively “relevant” results and side effects of either
private or institutional-political actors for which these actors, however,
cannot be held responsible or made responsive by available legal [stricto
sensu] or institutional means.39
This new space where social movements intervene is a space of non-institutional
politics that appears as a need rather than as an option.40 Others have concurred in
this reading; Kenneth Tucker, for instance, also noted NSM occur in a sphere far
from (though, as Offe noted, connected with) traditional political landscapes.
Therefore, collective communication occurring in a non-institutional fashion is the
key to understanding citizens’ direct engagement with other citizens and
authorities.41 Organizations engaged in this form of political participation privilege
“direct action, popular initiative and self-actualization over bureaucratic
38
Habermas has also noted how under the NSM paradigm politics reaches new spheres before seen
as private (i.e. the family), a process facilitated by recourse to direct means of participation. This, he
suggested, generates a dialectical phenomenon of reduction/extension of the State. The State and
its institutions, on the one hand, are reduced as NSM resort to forms of political participation other
than those formally defined from above; however, at the same time, the State and its institutions
begin to have a greater influence by starting to intervene, both legally and bureaucratically, in those
very same spheres as they become politicized. Jürgen Habermas, New Social Movements, 21 TELOS
33, 35-6 (1981). Rancière, from a more radical perspective, has called this very process the
democratic process. The process—he argues—of enlarging the public sphere by politicizing areas
before seen as part of the private realm, the very process by which individuals become political.
JACQUES RANCIÈRE, HATRED OF DEMOCRACY 55-9 (Steve Corcoran trans., Verso 2014).
39 Offe, New Social Movements, supra note 36, at 826.
40 Id. Not surprisingly, as Offe noted years ago, the neoconservative strategy has insisted in
‘reprivatizing’ those spheres, both reducing State interference and, at the same time, stretching
political participation “down” to institutional channels. (818-20).
41 Tucker, How New are the New Social Movements? supra note 31, at 78. See also, Cohen, Strategy or
Identity, supra note 35, at 667.
34
representation.”42 It is a “new form of citizen politics,” as Handler put it, “based on
direct action, participatory decisionmaking, decentralized structures, and
opposition to bureaucracy.”43 As Jean Cohen sums up, NSM resort to a form of
politics that, as these groups themselves claimed, place their efforts beyond
traditional party politics:
Instead of forming unions or political parties of the socialist, social
democratic, or communist type, they focus on grass-roots politics and
create horizontal, directly democratic associations that are loosely
federated on national levels.44
A quick survey on how recent protesters and observers saw the 2011 wave of
mobilizations further confirms scholarly views on the use of direct action—this
time merged with high levels of distrust toward formal politics and representative
instances. Douzinas, accounting for the Greek case, emphasizes distrust towards
representative democracy and the inattention to the interests of those
marginalized and excluded as the main thrusts behind protests.45 This was also the
case of the Occupy movements across North America; these movements expressly
contended their representatives have agreed to promote multinationals’ interests
rather than those of their people, and, as such, the movements called to advance
42
Tucker, How New are the New Social Movements? supra note 31, at 80.
Joel F. Handler, Postmodernism, Protest, And the New Social Movements, 26 LAW & SOC’Y REV. 697,
719 (1992); Cohen, Strategy or Identity, supra note 35, at 692-3 (arguing the new paradigm notes
actors taking part in NSM interact in a non-hierarchical fashion); Offe, New Social Movements, supra
note 36, at 829 (noting NSM “do not rely in traditional political forms, neither internally, where
they privilege non-hierarchical and collective relations, nor externally, where, as seen, they act in
through informal means”).
44 Cohen, Strategy or Identity, supra note 35, at 667.
45 DOUZINAS, PHILOSOPHY AND RESISTANCE, supra note 2, at 12-3, 147-8, 150-52.
43
35
“participatory democracy … not through elected representatives.”46 In Iceland,
protesters held representatives were simply unable to confront the power of
financial elites.47 Castells, for one, argues that the Spanish indignados went beyond
in seeking direct action to move beyond formal politics, but also away from other
cultural and media intermediaries.48 Even social protest movements which
deliberately sought to engage in formal political dialogue, as was the case of
Chilean students, began manifesting their criticisms as to the way representatives
were carrying out their duties.49
Not only has the concept of politics been transformed by direct action, but also the
conceptual extension of representative democracy. By shaking models based
exclusively on a juridico-legal representative fashion—despite claims contending
the erosion of authority50—NSM have contributed to shape democracy’s current
understanding. As Urbinati and Warren have shown, the concept of representation
has been expanded (in a clear display of its historical contingency) to encompass
forms of participation and political decision-making that include non-electoral
46
James Miller, Is Democracy Still in the Streets?, in THE OCCUPY HANDBOOK 173 (Janet Byrne ed.,
2012), at 174.
47 Lilja Mósesdóttir, Iceland, 14 EUR. SOC’Y 141, 142 (2012).
48 CASTELLS, NETWORKS OF OUTRAGE, supra note 21, at 121.
49 Nora Lustig et al., ¡Basta ya! Chilean Students say ‘enough’, in THE OCCUPY HANDBOOK 223, supra
note 46, at 227-30.
50 Offe, New Social Movements, supra note 36, at 817-8 (underscoring that conservative analysts
saw NSM as disruptive of the established legal order, “highly vicious and dangerous … of political
authority and even [of] the capacity to govern.”). But see, Tucker, How New are the New Social
Movements? supra note 31, at 79 (arguing NSM do not take authority for granted but, instead, they
build and test traditional instances from below); David A. Snow, Social Movements as Challenges to
Authority: Resistance to emerging Conceptual Hegemony, in RESEARCH IN SOCIAL MOVEMENTS, CONFLICTS
AND CHANGE VOL. 25, supra note 34, 3 (contending too much focus on “contentious politics” falls
short of appreciating a whole array of NSM who contend authority beyond the government).
36
venues, including instances of self-authorized representation.51 While Urbinati and
Warren show these new instances of self-authorization appear as a reaction
against the failure of institutional politics in representing citizens,52 they also
acknowledge—closer to the literature on NSM—that these forms of direct
participation are “not necessarily a precursor to formal, electoral inclusion but
rather a representative phenomenon in its own right.”53
The same might be said about discursive representation. According to Dryzek and
Niemeyer, discursive representation permits more of a comprehensive
representation of individuals and groups in contexts where the demos has not
been totally defined, admittedly the current situation in modern communities and
by necessity situations where NSM contest dominant patterns.54 In making the
case for representing discourses as an integral part of democracy, Dryzek and
Niemeyer argue it opens spaces up for bringing new discourses into the
democratic agenda. Groups normally marginalized from formal politics would see
their chances of influencing public opinion increased—thus enhancing the
legitimacy of public decisions.55 While Dryzek and Niemeyer are more concerned
with suggesting formal avenues to implement discursive representation, they also
note informal avenues for discursive representation serve the purpose of
51 Nadia Urbinati & Mark E. Warren, The Concept of Representation in Contemporary Democratic
Theory, 11 ANN. REV. POL. SCI. 387, 403-05 (2008) (mentioning also citizen representatives—citizens
non-elected but who take part in “formally designed venues into which citizens” participate).
52 Id. at 403.
53 Id. at 404.
54 John S. Dryzek & Simon Niemeyer, Discursive Representation, 102 AM. POL. SCI. REV. 481, 481-8
(2008) (arguing individuals feel represented by various levels of discourses, “each of which
resonates with a particular aspect of the ‘self’”).
55 Id. at 488-90.
37
providing a space of critical oversight of discourses recognized at the formal level
as well as influencing the terms of political debates and understandings of those
discourses.56 Once again, discursive representation neither replaces nor claims to
be better than formal avenues of representation, rather different and
complementary.57
The emphasis on how the concept of political representation has been expanded to
include forms of self-authorization and discursive representation, to name a few, is
precisely the outcome NSM have sought and are still seeking: that of contending
institutions and a certain form of politics, as well as cultural, social, and other
kinds of normative values and principles that we usually take for granted. A large
array of scholarly literature has agreed NSM have contributed to democratize,
rather than to diminish, our comprehensions of democracy58 at institutional (by
bringing in new forms of participation), political (by opening public opinion,
shaping new discourses and thus broadening democratic legitimacy), and social
(by contending “the structures of domination involved” in societal norms) levels.59
56
Id. at 490-1.
Id. at 481, 489.
58 CHESTERS & WELSH, SOCIAL MOVEMENTS, supra 4, at 2 (noting social movements have triggered
changes—as did the Civil Rights movement—, few would now claim to have diminished
democracies); TILLY, SOCIAL MOVEMENTS, supra note 14, at 1 (“by the turn of the twenty-first century,
people all over the world recognized the term ‘social movement’ as a trumpet call, as a
counterweight to oppressive power, as a summons to popular action against a wide range of
scourges.”); Offe, New Social Movements, supra note 36, at 828 (arguing social movements’ goal is
that of being recognized as legitimate “political actors by the wider community”); Cohen, Strategy
or Identity, supra note 35, at 668-9 (underscoring democratizing trends social movements have
imposed do also impact beyond the State reaching social institutions).
59 Cohen, Strategy or Identity, supra note 35, at 694.
57
38
Their biggest success has been that of making it empirically and politically evident
that representative democracy is a contingent (essentially contested) concept.60 As
John Markoff once wrote when introducing his sociological history of democracy’s
changes, “[d]emocracy has been continually defined and redefined by the people
challenging government in the streets and fields …”.61
For my purposes here it is enough to note, along with Chantal Mouffe, that at the
conceptual level democracy opens, rather than closes, spaces for contestation.62
Mouffe’s normative stance also has its empirical face, for as political opportunity
structure studies—a variant of RMT—have shown, the more democratic the States,
the more likely social movements (together with their non-institutional means of
intervention) will sprout.63 In fact, as Jack Goldstone has suggested, so regular are
these non-institutional forms of participation that they are already contained in
any shape which representative democracy might take in the future.64 Eventually,
the level of tolerance, acceptance, and responsiveness a State shows toward non-
60
Where the degree to which a “continuous active participation of all citizens in political life”
stands among democracy’s (already an essentially contested concept) most contested features. W.
B. Gallie, Essentially Contested Concepts, 56 PROC. ARISTOTELIAN SOC. 167, 184-6 (1956).
61 JOHN MARKOFF, WAVES OF DEMOCRACY: SOCIAL MOVEMENTS AND POLITICAL CHANGE xvi (1996).
62 In fact, as Mouffe argues, democracy opens the possibility of nevertheless sharing a common
symbolic sphere, advancing different forms as to how to organize that common ground. In this, she
notes—and I will argue below—rights play a key role in permitting that contestation to
continuously flow, thus preventing, rather than promoting, radical redefinitions. CHANTAL MOUFFE,
THE DEMOCRATIC PARADOX 13-6, 44-5 (2000 repr. 2009). CHANTAL MOUFFE, ON THE POLITICAL (2005)
(arguing the dangers of denying political antagonism and its manifestation within a shared
common ground).
63 Amenta & Young, Democratic States and Social movements, supra note 29. But see, Jack A.
Goldstone, More social movements of fewer? Beyond political opportunity structures to relational
fields, 33 THEORY & SOC’Y 333 (2004) (arguing social movements are part of normal politics and not
only a matter “of repressed forces fighting states” and acting according to given opportunities).
64 Goldstone, More social movements of fewer? supra note 63, at 336-7.
39
institutional forms of participation becomes a democratic touchstone.65 The
downside is for governments reluctant to (politically rather than formally) include
non-institutional mechanisms of participation, for they artificially hinder
disagreement and conflict likely to erupt at some further time in a more radical
and evil face.
II. Who are the addressees? Presupposing the State
Hitherto I have been considering two of the most relevant approaches to social
movements, namely RMT and NSM schools. Despite main disagreements on their
approximations, they both coincide in highlighting the non-institutional means
social movements resort to, on the one hand, and in admitting them as part of
regular politics, on the other. Besides explanatory coincidences there is another
common ground both schools admit to at a more conceptual level: that protests, as
part of the repertory of actions social movements resort to—and in spite of
revolutionary goals bawled—, presuppose the State and its institutions, at least
when they are aimed at reading the Constitution.66 Although the literature on
65
Amenta & Young, Democratic States and Social movements, supra note 29, at 154 (“states whose
leaders, forms, and policies are decided with key participation and input from everyday people.”).
66 When I say that social protest movements (aimed at reading the Constitution) presuppose the
State I mean they actually accept the State and its institutions as they have been erected, despite
the fact they also aim to shape, transform, influence, etc. that very same State and its institutions.
Therefore, they presuppose a certain form of State—most of the times it has been a decision from a
governmental agent what has took them to mobilize—and not just a certain form of polity.
Revolutionary movements, on the other hand, are aimed precisely at changing “the type of political
organization, e.g. from monarchy to oligarchy, from oligarchy to democracy, and so on … a sharp,
sudden change in the social location of political power, expressing itself in the radical
40
social movements shows this is the case, it is also worth noticing that recent social
movements have made explicit their intentions not to present any demands before
institutional avenues, totally disregarding the State.
A. States, institutions and social movements
Let me begin by pointing out the relevance of the State and its institutions on social
movements (and of the movements over the State and its institutions). As I ended
up noting in the previous section, social movements have played their part, in fact
a very important one, in democratizing States. However, at the same time,
empirical analyses show their intervention has been possible due to the fact States
have also become more democratic—States, as Amenta and Young put it, “whose
leaders, forms, and policies are decided with key participation and input from
everyday people.”67 I do not want to engage in a kind of what came first, the
chicken or the egg, debate, rather suggest these facts exhibit an (almost
unavoidable) interdependency between States and social movements—a relation
further encouraged as social movements do not completely dispense with
institutional avenues, but quite the contrary.68
According to Offe, institutional and non-institutional means run parallel as those
engaging in “unconventional forms of political action do so in addition to the fact
transformation of the process of government, of the official foundations of sovereignty ….” Eugene
Kamenka, The Concept of a Political Revolution, in VIII NOMOS 122, 124 (Carl J. Friedrich ed. 1966).
67 Id.
68 In fact, and pushing things a little bit forward, even revolutionary social movements presuppose
the State, whose institutions they seek drastically to alter and replace—not in vain nationalism has
been the main driving force behind revolutionary social movements. JAMES DEFRONZO, REVOLUTIONS
& REVOLUTIONARY MOVEMENTS 8 (1991).
41
that they also are likely to have engaged in ‘orthodox’ political behavior.”69 Or as
Cohen has put it, NSM are fairly characterized as self-limiting movements whose
main focus is that of furthering the democratic project together with its
institutions, rather than abolishing the State.70 In fact, they do not act in an isolated
fashion, but in relation with other political actors.71 Non-institutional instances of
participation as well as institutional venues become part of social movements’
repertoire, intertwined up to a point where no radical line can be drawn.72
Unsurprisingly, Tucker thus noted actors of NSM accept democratic States, the
very same condition that legitimizes their demands and means.73 Offe also
underscored (new) social movements do not disregard the State; actually, their
demands, which are neither purely private nor exclusively public, pose new issues
likely to be affected both by private actors and State policy. What they insist on,
however, is the unavailability of legal or institutional means suited, let alone
designed, to hold involved actors accountable—which explains their insistence on
(new spheres of political action filled up with) non-institutional means.74
Moreover, as Habermas more practically put it,
69
Offe, New Social Movements, supra note 36, at 840 (his emphasis).
Cohen, Strategy or Identity, supra note 35, at 664-70. See also, Elim Papadakis, Social Movements,
Self-limiting Radicalism and the Green Party in West Germany, 22 SOCIOLOGY 433 (1988).
71 Offe, New Social Movements, supra note 36, at 830 (“Social movements relate to other political
actors and opponents not in terms of negotiations, compromise, reform, improvement, or gradual
progress to be brought about by organized pressure and tactics, but, rather, in terms of sharp
antinomies such as yes/no, them/us ….”).
72 Goldstone, More social movements of fewer? supra note 63, at 342.
73 Tucker, How New are the New Social Movements? supra note 31, at 78.
74 Offe, New Social Movements, supra note 36, at 826.
70
42
these challenges [NSM pose] are largely abstract and require technical and
economic solutions that must, in turn, be planned globally and implemented
by administrative means.75
Charles Tilly, on the currency of RMT, has also disputed that, from a historical
viewpoint, social movements as political actors regularly involve “governments of
one sort or another [that] figure somehow in the claim making, whether as
claimants, objects of claims, allies of the objects, or monitors of the contention.”76
Amenta and Young argue in a similar vein when affirming social movements
necessarily involve the State—which would also be the case of identity
movements.77 It is true that RMT fell short in their analyses by not considering that
social movements act in spheres other than those of the State and its institutions.78
Even in these situations, however, the State may play an important role. Van Dyke
et. al have argued that social movements also target instances other than the State,
such as when they look to influence public opinion by directing their actions
“toward the realms of culture, identity, and everyday life, as well as direct
75
Habermas, New Social Movements, supra note 38, at 35. He would later insist that civil society
functions by “signaling” problems the political system should process and solve. As this is an
ongoing dialogue, once a solution has been implemented, civil society “oversee[s] further treatment
of problems that takes place inside the political system.” JÜRGEN HABERMAS, BETWEEN FACTS AND
NORMS. CONTRIBUTIONS TO A DISCOURSE THEORY OF LAW AND DEMOCRACY 359 (William Rehg trans., MIT
Press 1998).
76 TILLY, SOCIAL MOVEMENTS, supra note 14, at 3.
77 Amenta & Young, Democratic States and Social movements, supra note 29, at 153 (arguing that,
though some contend not all movements are State-oriented, even those movements resort to State
action “as leverage against their opponents”).
78 Van Dyke et al., Beyond a focus on the State, supra note 34, 28 (arguing not all movements focus
on the State, but a large array of them “target other entities, such as religious, medical, and
educational organizations, professional associations, and private employers”).
43
engagement with the state.”79 But if States are catalogued as—allow me to put it
this way—more democratic as they become more responsive to their citizenry,
these changes and challenges at cultural, everyday life and social norms levels also
impact the new realm of institutional politics, and, most importantly, they might
also impact the very same conditions that legitimate social movements’ direct
action.80 In line with András Sajó, dominant trends in social organization and
norms receive a privileged legal treatment when it comes time to legally regulate
certain forms of collective behavior, even when all forms of expression, hegemonic
(i.e. religious manifestations) and counter-hegemonic, involve passions and
emotions.81
Experience shows, therefore, that RMT and NSM approaches are not such
incompatible enterprises, but rather that they are complementary.82 Moreover,
this overlapping relation between institutional and non-institutional forms of
political participation, far from a pure casual empirical confluence, might be the
result of the same driving principle working beneath both forms of intervention in
79
Id. at 29.
A form of impact that has proven crucial for displaced and marginalized social groups as their
struggle also concentrates on shaping both institutional as well as non-institutional patterns of
hegemony. As Nancy Fraser explains, social groups resort to a cluster of strategies aimed at
“redressing misrecognition … replacing institutionalized value patterns that impede parity of
participation with ones that enable or foster it.” Nancy Fraser, Rethinking Recognition, 3 NEW LEFT
REV. 107, 114-5 (2000).
81 ANDRÁS SAJÓ, CONSTITUTIONAL SENTIMENTS 246-7 (2011). This, as I will argue below, also impacts
the formation of the public opinion according to which the State responds. If certain forms of
participation, particularly those regarded as uncommon, unconventional or non-institutional, are
enfolded with legal, constitutional, social, and cultural restrictions, then part of the people will be
placed in subordination to those whose forms of participation are considered more acceptable.
They will be not, as they normally are not—to quote Fraser again—“full partner[s] in social life.”
Fraser, Rethinking Recognition, supra note 80, at 113-4.
82 Cohen, Strategy or Identity, supra note 35, at 705-08.
80
44
politics. Goldstone put it as follows: “that ordinary people are politically worthy of
consultation.”83
This relation, however empirically-credited, has also proved to be contingent and
tense. Social movements that find States responsive to their demands84 are more
willing to continue engaging in informal collective action.85 Moreover, even when
previously marginalized groups have been progressively integrated into regular
and institutional channels of political participation, this inclusion did not come “at
the expense of other forms of participation.”86
Others have called the attention of inclusive States as governmental officers are
keen on using inclusion in formal avenues as an argument to call protesters to
abandon informal means of participation (you have been invited to have a say—
the governmental argument goes) or to weaken non-institutional movements. For
one thing, institutional venues have proven ill-suited to encourage actual
deliberation between States and challengers.87 For another, by including
challengers into formal avenues governments might succeed in disarticulating
social movements or causing friction among them. After all, as Dryzek has argued,
when groups leave the “oppositional sphere to enter the state then dominant
83
Goldstone, More social movements of fewer? supra note 63, at 342.
Moreover, some authors have suggested governmental responsiveness is an index of democracy’s
quality. See, G. Bingham Powell, Jr., The Chain of Responsiveness, 15 J. DEMOCRACY 91 (2004).
85 Amenta & Young, Democratic States and Social movements, supra note 29, at 155.
86 Goldstone, More social movements of fewer? supra note 63, at 337-8.
87 Lucio Baccaro and Konstantinos Papadakis, The downside of participatory-deliberative public
administration, 7 SOC.-ECON. REV. 245 (2009).
84
45
classes and public officials have less to fear in the way of public protest.”88
Therefore, incentives actually point to maintaining the autonomy and
independence that an informal civil society provides.89
One possible way of solving this puzzle is by noticing that challengers, despite
joining certain institutional avenues, maintain their rights to resort to direct means
of action whenever they decide to do so—constitutionally granted rights, in other
words, do not expire.90 In fact, it has been frustration with available conventional
forms of participation what has brought many movements to seek alternatives in
the non-conventional realm.91 A second non-exclusive alternative is not to
succumb too quickly before the temptation of getting into formal avenues. It might
be sensible to first analyze whether the avenues offered and issues contested
provide any actual opportunity for change at the institutional level. Dryzek, for
instance, argues social movements might first consider whether their claims fall
(or can be redressed) to what he calls State imperatives, “any function that
governmental structures must perform if those structures are to secure longevity
and stability.”92 If this is the case, then it might be strategically sensible to join
formal conversations. However, when this is not the case (i.e. challengers’ claims
touch upon issues irrelevant for the State) inclusion might well be
88
JOHN S. DRYZEK, DELIBERATIVE DEMOCRACY AND BEYOND: LIBERALS, CRITICS, CONTESTATIONS 89 (2002).
Id., at 81-5 (arguing conditions for meaningful inclusion are quite demanding).
90 This, however, opens the door for strategic criticism from the State, which will likely resort to
mainstream media to highlight the fact that challengers, having been offered the opportunity to
seek their demands at governmental level, have preferred to quit and continue rioting.
91 Offe, New Social Movements, supra note 36, at 855.
92 DRYZEK, DELIBERATIVE DEMOCRACY, supra note 88, at 83-5.
89
46
counterproductive.93 Context is also important; opening institutional avenues
might not be enough where social patterns of misrecognition and, as in most
countries, structural material inequality are maintained.
There is an important caveat in this analysis that recent mobilizations force us to
consider: the case of movements whose aim is addressing neither the State nor its
institutions, but to promote the process itself.94 This is one of the key features the
Occupy and the indignados movements have resorted to: not to present any single
demand before the State and to reject representative politics.
The first principle OWA [Occupy Wall Street] shares with anarchists is the
refusal to recognize the legitimacy of existing political institutions. A reason
for the much-discussed refusal to issue demands is that issuing demands
means recognizing the legitimacy—or at least the power—of those of whom
the demands are made.95
By the same token, Douzinas, addressing the Greek protests in 2008, affirms the
people did not pose any demand. These were “people whose interests are never
heard, accounted or represented. They did not demand anything special. They
93
Id. at 110-1. However, it should be pointed out that State imperatives could vary over time—
something Dryzek recognizes (at 93)—and actually the large array of rights constitutionally
enshrined have helped to open up States’ duties. In any case, what rights entail is often the subject
of strong disagreement (there is key disagreement as to what rights we have and what they do
command, forbid, and permit), and this is precisely Dryzek’s warning: social movements should
only seriously consider joining the State when “the defining interest of the entering group can be
connected quite directly to an existing or emerging state imperative” (at 88).
94 CASTELLS, NETWORKS OF OUTRAGE, supra note 21, at 185.
95 David Graeber, Occupy Wall Street’s Anarchist Roots, in THE OCCUPY HANDBOOK 141, supra note 46,
at 144.
47
simply said, ‘enough is enough’, ‘here we stand against’.”96 It was a process through
which those who were invisible became visible.97
Refusal to posit demands has opened some flanks to criticism. Alain Badiou, for
example, has argued riots unaccompanied with political truth become a sign (the
unrest) with no judgment.98 While Badiou is not suggesting that political meaning
is to be achieved only by addressing the State, he certainly believes movements
become political as they also develop an idea, “a kind of historical projection of
what the historical becoming of a politics is going to be …”.99 This is the moment
when
you decide what the state must do and find the means of forcing it to, while
always keeping your distance from the state and without ever submitting
your convictions to its authority, or responding to its summonses, especially
electoral ones.100
Žižek has also raised his voice to warn challengers not to fetichize the movement
by “fall[ing] in love with themselves, with the fun they are having in the ‘occupied’
zones.”101 While he admits the movements might be in a latent state where no
quick and adjusted-to-liberal-still-not-contested-hegemony is needed (challengers
must resist the temptation of translating their energy in “a set of concrete
96
DOUZINAS, PHILOSOPHY AND RESISTANCE, supra note 2, at 151.
Id.
98 ALAIN BADIOU, THE REBIRTH OF HISTORY: TIMES OF RIOTS AND UPRISINGS 21-6 (Gregory Elliott trans.,
Verso 2012).
99 Id. at 63-4 (his emphasis).
100 Id. at 81-2.
101 SLAVOJ ŽIŽEK, THE YEAR OF DREAMING DANGEROUSLY 77 (2012).
97
48
demands”—he concedes),102 he also argues “they express an authentic rage that
remains unable to transform itself into even a minimal positive program for sociopolitical change … the fatal weakness of the current protests.”103 By relying on the
Spanish indignados manifesto, he asks: who are those being addressed by the
demands?104
To be clear, neither Badiou nor Žižek is suggesting challengers should exclusively
address the State and its institutions, but to go further in radical change. The
question that remains open is whether movements such as Occupy and European
indignados are aimed at achieving that radical a change.105 Some say they do.
Douzinas, for instance, claims that these mobilizations carry the germ of political
comprehensive changes. They amount to a “political baptism,” as he puts it, which
prepares resisting subjectivities despite posing no demands before formal
powers.106 Castells makes a similar claim; to him, instead of assessing the
movements by considering actual politico-formal outcomes, they have to be seen
under broader political changes they might, and some are sure to, bring about: “its
impact on people’s consciousness …”.107 In the worst scenario, lack of specific
demands is the movements’ strength and weakness.108
102
Id. at 82-3.
Id. at 78.
104 Id. at 79.
105 A latent condition Badiou reserves for ‘Arab Spring’ mobilizations. BADIOU, THE REBIRTH OF
HISTORY, supra note 98, at 26 ff.
106 DOUZINAS, PHILOSOPHY AND RESISTANCE, supra note 2, at 141-4 (arguing against Badiou that these
movements are not anti-political but collectively insurrectional or political despite their lack of
direct demands).
107 CASTELLS, NETWORKS OF OUTRAGE, supra note 21, at 185-97.
108 Id. at 188.
103
49
This is one possible reading. On the one hand, it suggests the sociological
approaches described thus far fall short in not considering the force of movements
targeting not the State, but society itself. On the other, it might be seen as a call for
reconceptualizing what presupposing the State means. Under this reading one
could argue that these movements, even if not directly addressing the State (and
its institutions), define themselves precisely in relation/opposition to it. In order
to define the new frontiers of the possible, which is no longer in the sole hands of
the State, movements take the State into consideration to demarcate
boundaries.109
A second reading will be to suggest that, no matter how antagonist of formal
institutions a movement declares to be, it needs the State (and its institutions) to
meet its goals. I’m here only sketching some possible forms this argument may
take. First—I show some examples below—, challengers have claimed the
protection of rights embedded in liberal constitutions to shield their actions. This
signals, as I see it, respect and resort to the State and its institutions, certainly not
to have their demands realized through them,110 but they confirm the legitimacy of
certain key regulations (i.e. constitutional rights) that movements do not contend
(call it procedural safeguards to advance a movement’s substantive goals).111
109
BADIOU, THE REBIRTH OF HISTORY, supra note 98, at 94-5.
But see, Pam Martens, Occupy Movement files lawsuit against every federal regulator of Wall
Street, WALL STREET ON PARADE (February 28, 2013), available at: wallstreetonparade.com
111 In fact, many occupiers have resorted to these very same rights to shield their means of protest.
Just to name a few examples: Occupy Minneapolis v. County of Hennepin, 866 F. Supp. 2d 1062, 2011
U.S. Dist. LEXIS 135646 (D. Minn. 2011) (where Occupy Minneapolis asked a court to enforce a
bundle of constitutional rights—to free speech, assembly and others—against a resolution of the
110
50
Second, either willfully or not, these movements have triggered changes (or at
least had those possible changes in sight) in the formal field of politics. Some of
these changes have actually been seen as a success. In Iceland, the country where
one of the most salient cases that actually inspired other European movements
took place, demands were institutionally channeled through the Icelandic
Althingi112—where they eventually failed. Douzinas, who described Greek
mobilizations as latent historical movements that open prospects for future radical
change, talks precisely about politics whose “terrain had changed, through the
appearance of new politicized subjects.”113 In other cases, resorting to formal
politics has been seen as an unavoidable path. In Israel, for instance, the movement
acknowledged that for “changing the entire order … [they] will have to await the
results of future elections.”114 In other words, formal politics, the State and its
institutions are at least, a reference point not blurred by not posing demands.
B. Political context
county restricting meetings at Plazas); Order, In the Matter of Application of Jennifer Waller et. al. v.
City of New York 112957/2011, November 15, 2011, available at:
http://www.courts.state.ny.us/press/OWS111511.pdf (where occupiers claimed the city’s order to
ban tents in Zuccotti Park); Garcia v. Bloomberg, F. Supp. 2d, 2012 WL 2045756 (S.D.N.Y. 2012)
(where protesters marching across the Brooklyn Bridge complained they were not given fair
warrant by police officers before being arrested); Occupy Eugene v. United States General Services
Administration (GSA) 2013 U.S. Dist. LEXIS 170700 (D. Or. Dec. 3, 2013) (where occupiers asked a
court to grant them permission to protests on public dependencies); Felarca v. Birgeneau, 2014 U.S.
Dist. LEXIS 6812 (N.D. Cal., Jan. 17, 2014) (where California occupiers complained against police
brutality).
112 See, Á. TH. Árnason, A Review of the New Icelandic Constitution – popular sovereignty or political
confusion, 2011 TIJDSCHRIFT VOOR CONSTITUTIONEEL RECHT 342 (2011).
113 DOUZINAS, PHILOSOPHY AND RESISTANCE, supra note 2, at 144.
114 Neri Zilber, Occupying the Israeli Street: The tents protest movement and Social justice in the Holy
Land, in THE OCCUPY HANDBOOK 232, supra note 46, at 238.
51
Now I turn briefly to the second point before announced, namely the political
context where social movements display their (social) power. The political context
that I will consider here is different from what is known as the political
opportunity structures (POS) approach, despite being developed from this
approach.115 POS paid too much, if not all, of its attention to the impact that the
State (formally understood) has on movements, overlooking some crucial features
highlighted above.116 As noted, mobilizations are related to, although not
absolutely conditioned by, the State and its institutions. However, the fact that
social movements influence the State as well was also underscored. In fact, social
movements interact in a dialectic relation with the institutional channels of
participation, sometimes accepting their invitation to engage in dialogue,
sometimes not, but in any case shaping through action (and omission) formal
115 There might be as many definitions of what POS is as texts written on it. However, as Koopmans
explains, the core of POS is the idea that “opportunities are the most important determinant of
variations in levels and forms of protest behavior ….” Although rarely defined, opportunity,
Koopmans argues, refers to “constraints, possibilities, and threats that originate outside the
mobilizing group, but affect[s] its chances of mobilizing and/or realizing its collective interests.”
Ruud Koopmans, Political. Opportunity. Structure. Some Splitting to Balance the Lumping, 14 SOC.
FORUM 93, 96 (1999).
116 CHESTERS & WELSH, SOCIAL MOVEMENTS, supra note 4, at 136. On the political opportunity approach
see, Tarrow, States and Opportunities, supra note 28. However, the political opportunity structure
approach has found notable ground to accommodate itself to new empirical data and normative
arguments, a process facilitated, in a sense, because of the very fact some of its critics underscore:
its conceptual broadness “that soaks virtually every aspect of the social movement environment.”
CHESTERS & WELSH, SOCIAL MOVEMENTS, supra note 4, at 137. See also, Goldstone, More social
movements of fewer?, supra note 63, at 347 (suggesting political opportunity structure does not
distinguish between social movement formation and its possible success). David S. Meyer & Debra
C. Minkoff, Conceptualizing Political Opportunity, 82 SOC. F. 1457 (2003-2004) (noting political
opportunity theories have neglected a more robust theoretical conceptualization and suggesting
ways to fill that gap by distinguishing approaches to different causal mechanisms that are more
sensitive to some groups and less relevant to others).
52
avenues of participation (the democratization process).117 Furthermore, it should
also be noted—as the NSM school insisted—that social movements interact in
spheres before considered private or apolitical, therefore targeting issues different
from governmental avenues of decision-making. Changes at the governmental
level, therefore, do not necessarily impact these new spheres of politics.
A political context approach acknowledges this reciprocal relation between States
and social movements, and also takes note of its broader scope of action to suggest
a more accurate, but at the same time comprehensive, view when compared to
POS.118 If, as I have been noting thus far, non-institutional forms of participation
are regular forms of political intervention in democratic States, social
movements—and, among them, social protests movements—are not outside
actors carefully and rationally assessing opportunities which the formal political
landscape offers to advance their demands (the RMT approach), but one of the
players who helps to form those spaces. As Goldstone put it, they are one of the
“elements in a complex field of players in politics and society that are seeking
advantages by using a variety of tactics.”119 According to this view, social
movements may be affected (either hindered or encouraged) by the spaces
governmental institutional spheres offer and also by many other factors with
117 The fact that here democratization stands for the deepening of already democratic States should
be stressed. This does not mean social movements cannot trigger democratization in its more
literal sense: when authoritarian States are overcome to adopt (some sort of) democratic ruling.
See, DONATELLA DELLA PORTA, CAN DEMOCRACY BE SAVED: PARTICIPATION, DELIBERATION AND SOCIAL
MOVEMENTS 124 ff. (2013).
118 Hanspeter Kriesi, Political Context and Opportunity, in THE BLACKWELL COMPANION TO SOCIAL
MOVEMENTS 67, supra note 10, at 68-69.
119 Goldstone, More social movements of fewer? supra note 63, at 358.
53
which they relate (and vice versa), including several levels of political authorities,
elites groups, other movements and counter-movements, various publics, and—
most neglected by RMT—“symbolic and value orientations available in society that
condition the reception and response to movement claims and actions.”120
Bearing these precautions in mind, I can now turn to mark, relying on Kriesi, the
aspects of the political context that should be considered. The first aspect is
political structure, which, as Kriesi puts it, is the hard core of the political process
framework.121 This core is made up of formal political institutions, which admit a
variety of classifications, as well as by cultural-symbolic frames.122 The second
aspect is the configurations of actors, an ongoing process where protagonists,
antagonists, and bystanders take shape by mutually interacting. These actors are
also influenced by the structures of the political context—which, in turn, they also
120
Id. at. 357. See also, Meyer & Minkoff, Conceptualizing Political Opportunity, supra note 116
(arguing issue-specific openness is more important than general openness).
121 Kriesi, Political Context and Opportunity, supra note 118, at 69.
122 Open/closed, strong/weak, exclusive/integrative, centralized/decentralized. Id. at 70-3. How
these structures influence the formation and outcomes of social movements remains a contested
matter of both theory and experience. Kriesi, for instance, suggests that “[t]he greater the degree of
decentralization, the wider is the formal access and the smaller the capacity of any one part of the
system to act.” Id. at 70. Amenta and Young take this analysis further, distinguishing between
impacts on the form and level of mobilizations. In this light, they suggest the impact of separation of
powers varies. While decentralized polities “encourage a wider variety of challengers to form [and]
different types of collective action tailored to influence the various parts of the central state,”
centralization in the central government “dampens the overall level of social mobilization”. Amenta
& Young, Democratic States and Social movements, supra note 29, at 155-8. Meyer & Minkoff affirm
structural openness might be an important factor to consider regarding social movements’
outcomes, yet social movement formation seems to be more decisively influenced by signals: the
way activists perceive the political environment for mobilizing. Meyer & Minkoff, Conceptualizing
Political Opportunity, supra note 116, at 1464-84. In a similar sense Kriesi, Political Context and
Opportunity, supra note 118, at 77-8 (recognizing that subjective meanings that the people attach to
situations mediate between political opportunity and action).
54
happen to impact.123 As political context is conscious that not all social movements
target the State, not all social movements “are equally focused on the political
process and, therefore, dependent to the same degree on political opportunities for
their mobilization.”124 The third, and last, aspect is the place where structures,
both political and social, link actors: the interaction context where “contentious
interaction” occurs, that is, where actors influence one another and also shape and
modify that very same political context.125
This is the space Habermas termed the public sphere. More than a physical place,
this sphere is a social phenomenon “best described as a network for
communicating information and points of view.”126 Precisely to single out the
dynamics between non-institutional and institutional actors, Habermas notes
there are two public spheres: the public sphere and the political public sphere. The
former is where civil society (“the real periphery”) strives in public opinion
formation; the latter is comprised of those formal institutions (“parliamentary
bodies, administrative agencies, and courts”) where will-formation occurs.127 This
depiction of the common place of politics, broadly understood as comprising both
institutional and non-institutional politics, will prove critical in addressing the role
social protests might play as a legitimate constitutional form of interpretation. In
fact, as Habermas pointed out,
123
Kriesi, Political Context and Opportunity, supra note 118, at 73-7, 79.
Id. at 77.
125 Id. at 79. On the broad comprehension of this political context as comprehending both political
and new political matters, Cohen, Strategy or Identity, supra note 35, at 694-6.
126 HABERMAS, FACTS AND NORMS supra note 75, at 360.
127 Id. at 354-59.
124
55
binding [governmental] decisions, to be legitimate, must be steered by
communication flows that start at the periphery and pass through the
sluices of democratic and constitutional procedures situated at the entrance
to the parliamentary complex or the courts (and, if necessary, at the exit of
the implementing administration as well).128
III. Social movements and social protests: some constitutional notes
There is a lot we can learn from the sociology of social movements. I will close this
chapter underscoring certain characteristics of social movements that are relevant
in pursuing a constitutional analysis of social protests. This will help me in coming
up with a set of relevant characteristics, certainly not a static definition, which
social protests entail. In order to do so I (i) recall—as I said in the beginning—that
social protests are, among the available resources social movements resort to, the
most
disruptive
strategy
when
contrasted
with
prevailing
liberal
constitutionalism, and (ii) assume that social protests, although legally
regulated,129 are constitutionally covered and protected.130
128
Id. at 356.
Offe, New Social Movements, supra note 36, at 821-23 (arguing the contradiction of the liberal
constitutional scheme stems from the fact that rights were recognized but were not expected to be
claimed by the people they thought would be absorbed by “privatistic” matters).
130 See, ERIC BARENDT, FREEDOM OF SPEECH 268 ff. (2nd ed. 2005) (describing how protests find
protection in constitutional rights such as freedom of expression and the right to assembly).
129
56
Protests are but one of the means social movements resort to.131 Their sociological
comprehension has developed from being considered “irrational responses to
[specific] crisis” to “‘normal’ part[s] of the functioning of developed societies.”132 In
fact, protests have also been deemed a rational form of behavior that social groups
utilize to advance their political goals.133 Precisely because social protests are but
one of the means, among a myriad of strategies, that social movements resort to,
they share some of social movements’ critical features—albeit, as I will note, with
some proper characteristics.
Just as I did when approaching social movements literature, I will not provide or
attempt any definition, for definitions run the risk of proving too elusive or too
broad; they quite obscure our comprehension and may not even be able to build
sensible limits as to what they encompass. Consider, for instance, what Taylor and
Van Dyke suggest. To them, protest is
[the] collective use of unconventional methods of political participation to
try to persuade or coerce authorities to support a challenging group’s aim …
encompass[ing] a wide variety of actions, ranging from conventional
strategies of political persuasion to such as lobbying, voting, and petition;
confrontational tactics such as marches, strikes, and demonstrations that
131
But see, KARL-DIETER OPP, THEORIES OF POLITICAL PROTEST AND SOCIAL MOVEMENTS: A
MULTIDISCIPLINARY INTRODUCTION, CRITIQUE, AND SYNTHESIS 39-41 (2009) (arguing social movements are
but one of the specific forms social protest embody); Verta Taylor & Nella Van Dyke, “Get up, Stand
up”: Tactical Repertoires of Social Movements, in THE BLACKWELL COMPANION TO SOCIAL MOVEMENTS
262, supra note 10, at 263 (arguing protests are compounded by a variety of actions, including
lobbying, voting and petitioning).
132 CHESTERS & WELSH, SOCIAL MOVEMENTS, supra 4, at 143-5.
133 KARL-DIETER OPP, THE RATIONALITY OF POLITICAL PROTEST: A COMPARATIVE ANALYSIS OF RATIONAL CHOICE
THEORY (1989).
57
disrupt the day-to-day life of a community: violent acts that inflict material
and economic damage and loss of life; and cultural forms of political
expression such as rituals, spectacles, music, art, poetry, film, literature, and
cultural practices of everyday life. 134
Before, they had stated that protests are precisely the “fundamental feature that
distinguishes social movements from routine political actors.”135 However, the
truth is that actions such as lobbying, petitioning and voting are far from being
unconventional in nature. Moreover, the range of actions they include in their
definition practically includes every kind of opposition to, or prevention of, change.
Or take the definition Jenkins and Klandermans attempted when introducing a
compendium on social protests, which they define as follows:
The collective action of social movements that are attempting to alter the
representation system, public policies, or the general relationships between
citizens and the state.136
In this definition the reader should imply that because social movements are
mainly non-institutional then social protests are to have the same character,
although its vagueness actually opens more doubts precisely by inviting
speculation,137 for attempting to alter the representation system may be achieved
134
Taylor & Van Dyke, “Get up, Stand up”, supra note 131, at 263.
Id.
136 J. Craig Jenkins and Bert Klandermans, The Politics of Social Protest, in THE POLITICS OF SOCIAL
PROTEST: COMPARATIVE PERSPECTIVES ON STATES AND SOCIAL MOVEMENTS 2, 3 (J. Craig Jenkins and Bert
Klandermans eds., 1995).
137 As I will say below, it is precisely this mainly what denotes one of the main differences between
social movements and social protests.
135
58
through innumerable ways of collective action without leaving institutional
channels—an aspect this definition overlooks. Therefore, as I said, I would rather
concentrate on some relevant features of social movements a constitutional
approach to protests should consider.
A. Outside institutional channels
First, social movements are forms of collective action that take place mainly
outside institutional channels.138 I highlight that they mainly occur at the noninstitutional level.139 For one thing, as I have noted, movements are not totally
independent from institutional politics, which movements (most times) address
with their utterances. For another, not all of the strategies that movements resort
to are non-institutional (i.e. lobbying, bringing cases before courts). This is not the
case of social protests, which are non-institutional displays of social power140—yet
are aimed at being transformed into political power.141 The fact that protests are
per se non-institutional forms of participation does not deprive them from
constitutional protection. On the other hand, arguing that this constitutional
protection confers on protests’ institutional carapace would be pushing things too
138
David A. Snow et al., Mapping the Terrain, supra note 10, at 6.
Snow et al. say social movements “are defined in part by their use of non-institutionalized means
of action …”. Id. at 7.
140 Michael Lipsky, Protest as a Political Resource, 62 AM. POL. SCI. REV. 1144, 1145 (1968) (defining
protests as a “political action … characterized by showmanship or display of an unconventional
nature….”) But see, OPP, RATIONALITY OF PROTEST supra note 133, at 39 (arguing the concept of
protests should be understood broadly enough as to encompass also institutional and conventional
means of political participation).
141 HABERMAS, FACTS AND NORMS supra note 75, at 362-64.
139
59
far.142 The same might be said about the legal regulations that protests are
subjected to; although these regulations order protest activity, they do not specify
either the form they might take143 or its continuity.144 This is not the case of other
means which social movements utilize. Consider lobbying regulations, to take one
example, which stipulate, among several other restrictions, that a lobbyist must be
included in a public register, restrictions as to who can be a lobbyist, and even a
code of conduct.145 Or take the case of social movements that push their agenda by
filling lawsuits; this is a highly regulated arena where the range (kind, opportunity
and form) of arguments to be considered is formally limited.146
The fact social movements mainly occur outside political channels of participation
highlights a second, allegedly contingent,147 aspect worthy of attention:
142 Many of our acts, or omissions, as citizens are constitutionally protected. As we act under
constitutional protection, we remain citizens acting as members of the civil society.
143 It is true that these regulations normally punish violence, therefore constraining a certain form
which a protest movement must take, but this is also the case of every other means social
movements may resort to and also a “burden” erected upon every other civil society activity. In
other words, regulated violence is not a “legal burden” posed solely on social protests, but on all
actions and omissions taking place within the law’s, however contested, realm—the very realm
whose maintenance depends on (institutional) violence. See, Austin Sarat, Situating Law Between
the Realities of Violence and the Claims of Justice, in Law, VIOLENCE, AND THE POSSIBILITY OF JUSTICE 3
(Austin Sarat ed., 2001).
144 OPP, THEORIES OF POLITICAL PROTEST supra note 131, at 34 (arguing that an “action may be
‘unconventional’ or ‘irregular’ if there are not institutional rules prescribing that it is repeated over
time”).
145 I took this example from Nancy Holmes & Dara Lithwick, The Federal Lobbying System: The
Lobbying Act and the Lobbyist’ Code of Conduct (Background Papers - Ottawa, Library of Parliament,
Publication No. 2011-73-E, 2011), available at:
http://www.gordonforpendle.com/files/article/403/Lobbying%20(Canada).pdf (last visited Sep.
25, 2012).
146 See, Jeremy Waldron, Judges as moral reasoners, 7 INT’L J. CONST. L. 2 (2009) (arguing courts’
chambers may not be the best suited place to address, discuss and define both moral and political
issues).
147 Allegedly contingent as the fact protesters are regularly seen as illegitimate actors does not
steam from any structural conditions of social protests, but rather from the way in which
governments (helped out by mainstream media) see them.
60
challengers are usually not seen as legitimate political actors. Hegemonic
legitimacy is reserved to those acting exclusively through institutional means,
legitimacy reinforced through the successive imposition of cultural (societies who
conceive only certain forms of communication as viable), discursive (authorities
questioning resort to mobilizations), and legal (laws criminalizing protests)
patterns. Recent protesters, for instance, have argued that it is this exclusion from
the political public sphere, among other reasons such as distrust in
representatives, which takes them to non-institutional means.148 Collective noninstitutional action, as Weldon has argued, works for oppressed groups as an
effective way to overcome formal ties.149
This different political standing is not be obscured by the fact substantive claims
usually overlap with those brought up by legitimized actors.150 Dryzek and
Niemeyer have argued, for instance, that current institutional instances feature
crucial limits in providing sensitive and sensible representation.151 Even when
members of marginalized groups are included in institutional avenues the problem
of how a single member of that group can account for the whole still persists.152
148
In some readings it is precisely this political and economic marginalization of challengers what
defines a protest and leads challengers to protest. See, Susan Eckstein, Power and Popular Protest in
Latin America, in POWER AND POPULAR PROTEST: LATIN AMERICAN SOCIAL MOVEMENTS 1, 9 (Susan
Eckstein ed., 2001).
149 S. LAUREL WELDON, WHEN PROTEST MAKES POLICY: HOW SOCIAL MOVEMENTS REPRESENT DISADVANTAGED
GROUPS (2011) (focusing on how social protest movements, particularly that of women, have
resorted to informal means of participation seeking both new forms of representation and
overcoming formal democracy’s procedural ties).
150 David A. Snow et al., Mapping the Terrain, supra note 10, at 7-8.
151 Dryzek & Simon Niemeyer, Discursive Representation, supra note 54.
152 As Weldon has pointed out, the idea that individuals can represent a whole group “is based on a
problematic understanding of the relationship between individual experience and group
61
Finally, some of the claims that movements will pose might arguably be exclusive
to them—what NSM termed identity claims.
From a constitutional viewpoint we should thus consider the legal limits imposed
on social protests with a strengthened scrutiny,153 for those resorting to social
protest aim to take part in shaping collective public decisions from a double
condition of marginalization. In this double condition they resort to noninstitutional means, and, due to the very fact they are part of those groups, they are
either deliberately or consequently displaced from formal politics. It is true that
social displays of power have often been met with facially neutral regulations—
however difficult it is to draw such a sharp distinction between content-based and
content-neutral regulations.154 But it is also true these very same regulations,
however text-neutral, have an uneven impact on different groups. Reva Siegel has
shown how this is true in the fields of racial and gender law, fields where the law
has shown a non–combustible capacity to accommodate status–enforcement
through what appear to be neutral regulations.155 In such fields—as in probably
any other—“the state may enforce ‘facially neutral’ policies and practices with a
disparate impact on minorities or women so long as such policies or practices are
perspective.” She has insisted both institutional structures as well as social movements “can be
more or less representative of marginalized groups” by studying the spaces some administrative
agencies open for effective expression, even when compared to reserved legislative spots. Laurel S.
Weldon. Beyond Bodies: Institutional Sources of Representation for Women in Democratic
Policymaking, 64 J. POL. 1153, 1153-4 (2002).
153 I deal with this, and other aspects here briefly mentioned, in Chapters 3 and 4.
154 Wilson Huhn, Assessing the constitutionality of laws that are both content-based and contentneutral: the emerging constitutional calculus, 79 IND. L. J. 801 (2004).
155 See, Reva Siegel, Why Equal Protections No Longer Protects: The Evolving Forms of StatusEnforcing State Actions, 49 STAN. L. REV. 1111 (1996-1997) (arguing how the law has managed to
maintain status-enforcement despite its evolution into racially and gender-neutral regulations).
62
not enacted for discriminatory purposes,”156 a standard too difficult, if even
possible, to satisfy.157
The same occurs with legal regulations for protests. Legal regulations of expressive
conduct must be narrowly tailored in order to suppress as little speech as
possible.158 This is why a total ban on certain forms of speech would not pass
constitutional scrutiny:
Prohibitions foreclosing entire media may be completely free of content or
viewpoint discrimination, [but] the danger they pose to the freedom of
speech is readily apparent—by eliminating a common means of speaking,
such measures can suppress too much speech.159
However, even when legal regulations satisfy these standards, that is, even when
legal regulations are facially neutral and narrowly tailored, they still might be felt
stronger over the shoulders of those who, sometimes forced by circumstances, find
in protests the exclusive means to influence public opinion. To them, where no
adequate substitute channel exists, the application of these regulations amount to
the total elimination of effective channels of communication.160 The case is even
more pressing on those movements that resort to protest to pose identity claims,
for they will be struggling against more subtle forms of subordination that might
156
Id. at 1130.
Id. at 1134-42.
158 Clark v. Community for Creative Nonviolence, 468 U.S. 288 (1984); Frisby v. Schultz, 487 U.S. 474
(1988).
159 City of Ladue et al. v. Gilleo, 512 U.S. 43 (1994), at 55.
160 Id. at 56-7 (arguing that for some people—those with “modest means or limited mobility”—
certain forms of communication are to be left unrestricted). See, Donatella della Porta & Olivier
Fillieule, Policing Social Protest, in THE BLACKWELL COMPANION TO SOCIAL MOVEMENTS 217, supra note
10, at 220-7.
157
63
be further dissembled by providing formal and neutral open access. In other
words, as Nancy Fraser has argued, the total openness of the public sphere cannot
be guaranteed with formal exclusions (i.e. a total ban of certain forms of speech)
nor secured by relying exclusively on formal inclusiveness.161 Here, concerns for
freedom of expression become entangled with equality worries.162
B. Challenging nature
A second feature Snow et al. underscore is that social movements have a
challenging nature. Social movements are challengers aimed at either promoting
or resisting change. As I noted before, their activity of contention occurs either (or
both) in the political arena—“contentious politics”—or (and) at the cultural level.
As the authors put it, “movements [can] be considered as challengers to or
defenders of existing institutional authority … or patterns of cultural authority,
such as systems of beliefs or practices reflective of those beliefs.”163 Social protests
are not only non-institutional in character, but also challenging of prevailing
(political and cultural) agreements in character,164 what Taylor and Van Dyke
termed their raison d’être: contestation.165
161
Nancy Fraser, Rethinking the Public Sphere: A Contribution to the Critique of Actually Existing
Democracy, 25-26 SOC. TEXT 56, 63-9 (1990).
162 William N. Eskridge, Jr., Some Effects of Identity-Based Social Movements on Constitutional Law on
the Twentieth Century, 100 MICH. L. REV. 2062, 2053 (2002) (arguing “no theory of constitutional
law can be adequate or successful which does not centrally involve IBSMs and their
jurisprudence”).
163 David A. Snow et al., Mapping the Terrain, supra note 10, at 9.
164 OPP, RATIONALITY OF PROTEST, supra note 133, at 38 (defining political participation as “behavior
that has political relevance in the sense of attempting to influence governmental structure,
personnel, or policy”).
165 Taylor & Van Dyke, “Get up, Stand up”, supra note 131, at 268-9 (arguing social protest
movements are essentially aimed at pursuing or preventing change).
64
In the case of the social protest movements that I am considering, their challenging
nature points toward questioning political power relations as grounded in the
Constitution. Acts of protests are here directed at contesting common normative
grounds by advancing new constitutional readings and interpretations. Seen under
this light, protest becomes a means through which the political power capable of
implementing and developing the Constitution is shaped.166 As Habermas put it, it
is by mobilizing the public opinion, which protests help to shape, that the political
power is taken to formally consider issues brought about by ordinary people in
contestation of current assumptions.167 In other words, social protest serves some
groups as a means, and to some groups as the means, to take part in collective selfgovernment: defining and shaping the meaning of our common founding
principles. It is this engagement in politics that should grant protests special
protection.168 The long-settled freedom of expression doctrine grants dissenting
speech heightened protection. As Justice Holmes wrote in his concurring opinion
in Schwimmer more than eight decades ago,
Some of her answers might excite popular prejudice, but if there is any
principle of the Constitution that more imperatively calls for attachment
166
In Habermas, this political power institutionally capable of will formation includes both
democratically elected assemblies as well as courts “that decide political relevant cases.” HABERMAS,
FACTS AND NORMS, supra note 75, at 371-2.
167 Id. at 372-3, 380.
168 BARENDT, FREEDOM OF SPEECH, supra note 130, at 154 ff; Edward Heck & Albert C. Ringelstein, The
Burger Court and the Primacy of Political Expression, 40 W. POL. Q. 413, 415-16, 420 (1987).
65
than any other it is the principle of free thought-not free thought for those
who agree with us but freedom for the thought that we hate.169
There are also complementary reasons to strengthen social protests’ freedom of
expression protection. Social protests possess a twofold nature: they are, as I have
argued above, direct means of political participation and thus expressive conduct
itself to be protected,170 but they also are indirect means of political resource
building.171 Following Michael Lipsky, it is to be noticed that many times
challengers who resort to social protests do not directly target the State, but
develop political bargaining power they lack. They do this by addressing and
activating target audiences whom the government considers worthy of paying
attention to. Communication becomes essential to protests that, seen under this
light, operate in a “highly indirect” fashion.172 Protection of these informal
channels of communication proves critical for politically oppressed groups. For
them, recourse to social protest appears not just as one strategy among others, but
sometimes the only available communicative resource they have to posit their
political claims.173
169
United States v. Schwimmer, 279 U.S. 644 (1929), at 654-5. Freedom of expression also extends
its protection to false statements. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), at 339 (“Under
the First Amendment there is no such thing as a false idea.”).
170 See, Cox v. Louisiana, 379 U.S. 536 (1965). On the behavioral character of protests, OPP, THEORIES
OF POLITICAL PROTEST supra note 131, at 33-4 (arguing from a sociological viewpoint, protest is a
behavior, although noting there is disagreement as to what kind of behavior contributes to the
concept’s ambiguity).
171 HABERMAS, FACTS AND NORMS, supra note 75, at 383.
172 Lipsky, Protest as a Political Resource, supra note 140, at 1145-46; OPP, THEORIES OF POLITICAL
PROTEST supra note 131, at 34; HABERMAS, FACTS AND NORMS, supra note 75, at 364; Taylor & Van
Dyke, “Get up, Stand up”, supra note 131, at 267, 269.
173 Id.; WELDON, WHEN PROTEST MAKES POLICY, supra note 149. E.g., Organization of American States
66
While social protests are expressive actions aimed at politically contending
dominant patterns, they are not to be conceptually merged with civil
disobedience.174 Civil disobedience, Jürgen Habermas explains, is “[t]he last means
for obtaining more of a hearing” from political power.175 It is true that civil
disobedience might serve, as it has served, as acts of protest. A disobedient
contends acts of authority and power relations—using the breach of law to gain
“greater media influence for oppositional arguments.”176 Moreover, by reviewing
the list of characteristics normally attributed to civil disobedience they seem to
share all the attributes of social protests—most crucially the fact they are both
non-revolutionary means177—except for one critical feature: civil disobedience
exhibits illegality as one of its key characteristics.178
[OAS], Annual Report of the Inter-American Commission on Human Rights Vol. III: Report of the
Office of the Special Rapporteur for Freedom of Expression, OEA/Ser.L./V/II.124 Doc.7 (Feb. 27,
2006), at 121-22 (“The most impoverished sectors of our hemisphere face discriminatory policies
and actions; their access to information on the planning and execution of measures that affect their
daily lives is incipient and, in general, traditional channels to make their complaints known are
frequently inaccessible. Confronting these prospects, in many of the hemisphere’s countries, social
protest and mobilization have become tools to petition the public authorities, as well as channels
for public complaints regarding abuses or human rights violations.”).
174 I am of course considering here cases of civil disobedience taken out to the streets. In fact,
disobedience does not need to be done in public or in a concert with others. It can actually be
silently and individually practiced (i.e. refusing to enlist).
175 HABERMAS, FACTS AND NORMS, supra note 75, at 382-3.
176 Id.
177 RAFFAELE LAUDANI, DISOBEDIENCE IN WESTERN POLITICAL THOUGHT. A GENEALOGY 112-5 (Jason Francis
McGimsey trans., 2013) (arguing that it is this very acceptance of legal sanctions what signals
disobedients’ fidelity to the system); DOUZINAS, PHILOSOPHY AND RESISTANCE, supra note 2, at 84-5; 913 (“Disobedience … with its emphasis on civility, seeks its justification in the constitution, the law
or other institutional sources.”) See also, RONALD DWORKIN, A MATTER OF PRINCIPLE 105 (1985)
(distinguishing civil disobedience from mere criminality, as the former “do[es] not challenge
authority in so fundamental a way … [it] accepts the fundamental legitimacy of both government
and community.”).
178 Id. at 383; JOHN RAWLS, A THEORY OF JUSTICE 320-21 (revised ed. 1999) (arguing that whether
courts declare acts of civil disobedience as legally justified or not should not respectively encourage
or deter dissenters’ action).
67
As Quill argues, legal protection of civil disobedience might even be rejected for it
“entails the acceptance of punishment and guilt and the personal suffering
incurred from a non-linguistic form of persuasion.”179 This is not the case of social
protests, for social protests are prima facie lawful acts. Acts of social protests are,
in principle, covered by a cluster of constitutional rights (most notably, although
not exclusively, as I will tell below, freedom of expression). Furthermore,
democracy could be understood as actually promoting forms of protest and
dissent. As an author put it some years ago, “genuine democracy demands dissent,
thrives on protest.”180 Whereas there is a general constitutional entitlement to
critically engage in political self-government, there is no general principle granting
the faculty to disobey laws—but quite the opposite.181
It is true that challengers who resort to social protest often breach public order
laws, but that is an unintended (in the best case) or a by-product (in most cases) of
mass demonstrations.182 Protesters’ main aim is not to breach the laws they
179
LAWRENCE QUILL, CIVIL DISOBEDIENCE: (UN)COMMON SENSE IN MASS DEMOCRACIES 8-9 (2009); PETER E.
QUINT, CIVIL DISOBEDIENCE AND THE GERMAN COURTS: THE PERSHING MISSILE PROTESTS IN COMPARATIVE
PERSPECTIVE 40-1 (2008) (noticing that, though civil disobedience involves illegal action, it
“demonstrates their adherence to the legal system in general by breaking the law in public and by
being manifestly willing to accept the corresponding punishment”). But see, DWORKIN, A MATTER OF
PRINCIPLE, supra note 177, at 114-5 (1985) (arguing civil disobedience is not incomplete without
punishment).
180 CARL COHEN, CIVIL DISOBEDIENCE: CONSCIENCE, TACTICS, AND THE LAW 13 (1971).
181 As Professor Ronald Dworkin put it, “the moral permissibility of disobedience … is an exception
to a more general principle that requires obedience even to laws they disapprove but do not think
wicked.” RONALD DWORKIN, JUSTICE FOR HEDGEHOGS 318 (2011).
182 In the Brokdorf decision, cited below, the German Constitutional Court precisely considered
public order disturbances as a by-product of mass demonstrations, whereas a year later, in the
Großengstingen and Mutlangen cases, it upheld criminal convictions precisely because their very
purpose was to violate blockades statutes. See also, QUINT, CIVIL DISOBEDIENCE, supra note 179, at
164-5. But see, Batty et al. v. The City of Toronto, 2011 ONSC 6862, at para 15, where the court
considered the breach of TPM regulations as a form of civil disobedience (“The Charter does not
68
contend, but to express their disagreement with authority and power relations; in
order to shield both the content of their claims and the form to utter them, they
invoke freedom of expression and the right to assembly.183 Civil disobedients also
contend authority decisions, but the very means they resort to in order to express
their contention is precisely by breaking the very laws they dispute.184
In spite of the fact civil disobedience seems to be rather incompatible with liberal
democracy (after all it entails defiance of law’s authority),185 it is usually accepted
by liberal constitutionalism. In fact, liberal constitutionalism has found ways to
permit the Protesters to take over public space without asking, exclude the rest of the public from
enjoying their traditional use of that space and then contend that they are under no obligation to
leave. By taking that position and by occupying the Park, the Protesters are breaking the law. Such
civil disobedience attracts consequences. In this case, the civic authority which represents the
Toronto community now seeks to enforce the law.”).
183 This is why I disagree with Cohen when he argues these breaches of municipal regulations or
traffic regulations amount to what he calls indirect disobedience. Disobedience is one thing while
civil disobedience quite another, the latter being defined precisely by the breach of laws that are
disputed and not, as Cohen claims according to what he considers to constitute indirect
disobedience, as the breach of laws “other than the object of protest.” In fact, just as acts of protests
are constitutionally protected, under some circumstances these indirect breaches are also justified
as protests’ side effects. COHEN, CIVIL DISOBEDIENCE, supra note 180, at 14-5, 52. A distinction Joseph
Raz has suggested is of help here; he distinguishes between what he calls ‘cases of occasional
disobedience,’ “breaches of law which the agent thinks, given the character of the law involved and
of the particular circumstances in which he acted, were morally permissible,” from civil
disobedience, breaches of law that are politically or morally motivated. Whereas for the former
kind of breaches “moral considerations merely render [them] permissible,” in the latter the moral
and political reasons are the motivations for the breach. JOSEPH RAZ, THE AUTHORITY OF LAW: ESSAYS ON
LAW AND MORALITY 263-4 (2009).
184 Harrop A. Freeman, The Right to Protest and Civil Disobedience, 41 IND. L. J. 228 (1966) (“The
protest action is often not civil disobedience but in fact ‘obedience’ (the leader of the second
Oakland march called it ‘massive civil obedience’). The total pattern is in the democratic tradition
rather than anarchic or totalitarian (it claims to be an expression of free speech). The theory is not
anti-law but within the law.”). See also, Harry Kalven, Jr., The Concept of the Public forum: Cox v.
Louisiana, 1965 SUP. CR. REV. 1, 10-1 (1965) (arguing civil disobedience is a deliberate violation of
law whereas protests’ “essential feature is appeal to public opinion.”).
185 David Lyons has argued that there is not a moral/political obligation to obey the law when
certain conditions are not met. The political obligation to obey the law, Lyons claims, should itself
be based on moral grounds which are normally absent in the concrete historical/paradigmatic
situations that have taken us to consider civil disobedience and its justification. In these cases,
Lyons insists, there is no need to justify civil disobedience as there is no previous obligation to obey
the law. David Lyons, Moral Judgment, Historical Reality, and Civil Disobedience, 27 PHILOSOPHY &
PUBLIC AFFAIRS 31 (1998).
69
admit acts of civil disobedience as a regular part of the political landscape. Their
pacifist whiff may have contributed in considering conscientious objection as a
legal excuse to prevent sanctions.186 As Laudani has noted—while criticizing
Rawls—, disobedients show self-restraint that presents them as resorting to
disobedience only when other means of redress, including legal means, have
proved useless.187 Thus, liberal constitutionalism has found a way of turning what
first seemed illegal into an action covered and protected by law.188
Besides social acceptance, neoconstitutionalism has also helped to legally protect
(meaning not punishing or reducing the sanctions of) civil disobedience. As Ronald
Dworkin noted some time ago, constitutions that recognize constitutional political
rights as legal rights create a certain ambiguity when it comes time to determine
whether the law has actually been breached. The law, therefore, is no longer
exclusively the single (breached) statute invoked, but interpreted and checked
against the constitutional rights that redefine what the law is.189
This alternative merits a little detour. If acts in breach of a law are not sanctioned
under this model, it is exclusively because the statute itself is found to be
186
RAWLS, A THEORY OF JUSTICE, supra note 178, at 320 (defining civil disobedience as “a public,
nonviolent, conscientious yet political act contrary to law usually done with the aim of bringing
about change in the law or policies of the government”).
187 LAUDANI, DISOBEDIENCE IN WESTERN POLITICAL THOUGHT, supra note 177, at 114-5.
188 As Quill notes, when reviewing Rawls, while liberal tradition emphasizes a natural duty to obey
the law, justifications of civil disobedience call to temper that duty with “the duty to opposed
injustice.” QUILL, CIVIL DISOBEDIENCE, supra note 179, at 14-5. It is worth noticing, as Raz has done,
that it is one thing to justify civil disobedience (or even to hold that, under certain conditions, there
is also a duty to disobey the law), but quite another to suggest there is a general right to disobey the
law. RAZ, THE AUTHORITY OF LAW, supra note 183, at 266.
189 DWORKIN, A MATTER OF PRINCIPLE, supra note 177, at 115.
70
unconstitutional.190 We are thus dealing with cases where there was actually no
disobedience to punish. Disobedience, in this way, becomes obedience.191
However, it becomes obedience at a high cost: from a political perspective—for
instance the one Laudani takes—this form of understanding civil disobedience
deprives it of it rebellious significance.192 As Justice MacPherson put it,
“practitioners of civil disobedience target governments in their hope to change
certain laws. They do not expect the courts to change the laws …”.193 Well, this is
not quite so.
Social protests and demonstrations have not received the same benevolent
treatment. Liberal constitutionalism has for the most part depicted protests as
providing ample room for passions to flourish and thus as incompatible to the
reason(s) of law. This view on protest obeys hegemonic considerations rather than
a fair understanding of rights involved. As Sajó argues, every day we can witness
an “ambivalent constitutional treatment of collective public display of emotions
and passions,”194 for certain forms of collective behavior that also imply emotion
display get privileged constitutional/legal reception, whereas others are
190
James MacPherson, Civil Disobedience and the Law: The Role of Legal Professionals 41 OSGOODE
HALL LAW JOURNAL 371, 380 (2003) (“Provided the laws are constitutional … courts are sworn to
uphold the rule of law.”).
191 This was notably, although not exclusively, the case of Martin Luther King Jr.’s civil rights
movement. Though involving acts of illegality, the movement was justified mainly on the grounds of
“constitutional obedience.” LAUDANI, DISOBEDIENCE IN WESTERN POLITICAL THOUGHT, supra note 177, at
107-12.
192 Id. at 115-6.
193 MacPherson, Civil Disobedience and the Law, supra note 190, at 380.
194 SAJÓ, CONSTITUTIONAL SENTIMENTS, supra note 81, at 246.
71
mistreated.195 It is this ambivalent treatment, and a much-extended idea of civil
disobedience as essentially non-violent but still willing to accept punishment, what
accords them a deferential treatment.
C. Joint action
Third, social movements involve joint action, which roughly means a collective
effort. The very fact social movements are collective enterprises signals some
degree of internal organization is needed;196 in fact, this is the question RMT is
concerned with. However, the fact social movements are collectivities might be
somewhat obscured by some of their external manifestations. One single actor, say
a lobbyist, appears before an administrative agency and the public as a single
agent. This is not the case of social protests, which are always joint/collective
actions197 that might or might not be preceded by some sort of internal
organization.198
Therefore, from a constitutional viewpoint, social protests are essentially
collective bodies whose very comprehension has to be, both politically and legally,
collective. Politically, on the one hand, social protests show a joint attempt to
195
Id. at 247.
Although there is some disagreement as to the level, kind and necessity of organization needed.
David A. Snow et al., Mapping the Terrain, supra note 10, at 9-10.
197 OPP, THEORIES OF POLITICAL PROTEST supra note 131, at 34.
198 In other words, a protest might be a tactic deployed by a social movement that decides to act in
that way and where internal organization will be required, but social protests might also arise
spontaneously, where internal organization may, but also may not, be present. This distinction has
proven of relative importance regarding protests’ legal regulations. The Constitutional Court of
Germany, for one, has held that while organized demonstrations might be subjected to
administrative regulations of manner, place, and time, this is not the case of impromptu protests
that, if subjected to such regulations, would render the right to assembly meaningless. Infra note
201.
196
72
collectively take part in shaping the republic’s fate. This is a (constitutionally)
legitimate way of engaging in politics, particularly for those who see themselves as
something other than pure individual numbers whose votes are aggregated199 and
for those groups often marginalized from regular channels—as argued before.
Legally, on the other hand, this means that the rights involved are not just to be
assessed on an individual basis, but as collective exercises. Reading an exercise of
political citizenry in light of individual entitlements might prove misleading. This
emphasis has practical consequences, for if we are talking about a collective action,
particularly of social protest, legal decisions about protesters are to consider them
as a whole. Admittedly, this is a standard too difficult for the law to meet, which
normally focuses on the individual. What is interesting, however, is that it also
highlights the limited answer the legal order may offer in face of social protests.
Take three quick examples. In the Brokdorf case, the Constitutional Court of
Germany assessed the constitutionality of a total ban on public demonstrations
which was issued by the local police in light of the announcement of massive
protests against a soon-to-be-built atomic power plant. Accepting demonstrations
could be subject to regulations, the Court analyzed whether the fact that some of
the protesters were prone to violence could be a valid constitutional reason to
199
RONALD DWORKIN, LAW’S EMPIRE 206-15 (1986) (discussing three possible models of
understanding what a community is). See also, HABERMAS, FACTS AND NORMS, supra note 75, at 362
(“Public opinion is not representative in the statistical sense. It is not an aggregate of individually
gathered, privately expressed opinions held by isolated persons. Hence it must not be confused
with survey polls.”). While an emphasis on institutional means of participation often entails,
although not necessarily, an aggregative version of democracy, emphasis on avenues other than
governmental institutions recall a wider understanding of political deliberation. I have taken these
two models of democracy from CARLOS SANTIAGO NINO, THE CONSTITUTION OF DELIBERATIVE DEMOCRACY,
Chapter 4 (1996).
73
impede the others from freely exercising their constitutional rights. Considering
the protesters as a whole, it argued the fact that a small number of demonstrators
may resort to violence is not enough to “hold down the size of a demonstration or
to dampen the desire to demonstrate.”200 In words of the Court:
If there is no fear of collective strife, it is not necessary to take into account
the possibility that a demonstration as a whole will take a violent or
rebellious course or that the organiser or his following will strive for such
an outcome or at least approve of it. In such circumstances, for peaceful
participants the protection guaranteed by the Constitution to every citizen
of freedom to meet must remain preserved even if other individual
demonstrators or a minority commit riots. If behaviour of individuals which
is not peaceful were to lead to discontinuance of the basic right protection
for the whole event and not only for the perpetrators, these persons would
have it in their hands to ‘turn round’ a demonstration and make it become
unlawful, contrary to the intention of other participants [references
omitted].201
200
DONALD P. KOMMERS, THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY 396
(1997, 2nd ed.).
201 The standard here proposed by the German Constitutional Court does not run counter to my
previous assertion that social protest are to be considered as a whole, for what the Court is here
implying is that those who engage in riots have put themselves outside the peaceful, nevertheless
disruptive, protesters. Should this latter group collectively resort to violence, authorities will be
entitled to intervene. I have taken this translation from the Institute for Transnational Law, the
University of Texas School of Law, Translated Decisions, BVerfGE 69, 315 - Brokdorf Decision of the
First Senate, available at:
http://www.utexas.edu/law/academics/centers/transnational/work_new/german/case.php?id=6
56 (last visited, Oct. 14, 2012).
74
In Chicago, hundreds of people were detained and accused of having violated a
curfew in Grant Park.202 A group of 92 of those detained (who amounted to 233)
asked the Circuit Court of Cook County to dismiss charges as the curfew was
facially unconstitutional. The Court found the curfew to be unconstitutional—as
“the burden imposed on First Amendment activity is greater than necessary to
serve the important government interest.”203 In order to reach that conclusion,
which also benefited the rest of the detained not contending the ban, it considered
not only the group appearing before the Court, but also “whether other groups [of
protesters] … would have ample alternative channels for late-night assemblies
…”.204 Finally, in Chile, and in the midst of student mobilizations, a school board
decided to expel a student who took part in the occupation of the school. Chile’s
Supreme Court reasoned not on the grounds of freedoms of expression, but held
that the student sanctioned was not the only one participating in protests, thus
revoking the board’s decision as arbitrary.205
The collective character of social protests is also important when drawing
differences with civil disobedience. While both are acts of political and collective
display of contestation, only the former is constitutionally protected in the same
202
The curfew prohibits remaining inside the Park after 11:00 pm. As read in City of Chicago vs. Tieg
Alexander et al., Memorandum Opinion and Order, No 11 MC1-237718, et seq. (2012), at 1.
203 Id. at 23.
204 Admittedly, as the Court itself explains, this is the standard with which a facial challenge must be
assessed. However, my emphasis here is on the fact those “other groups not appearing before the
court” (Id., at 20) are actual members of the same movement. Moreover, the fact that protests are
collective in nature might also clarify the reason why the curfew was also found to be
unconstitutional on an as-applied basis, for the curfew, the Court argued, has not been always
enforced against all other demonstrators who had remained in Grant Park after 11:00 pm—thus
considering people taking part in protests as a block. Id., at 28 ff.
205 Corte Suprema [Supreme Court], Rol No 10.692-2011, 24 January 2012 (Chile).
75
fashion: collectively. It is true, as Rawls claimed, “civil disobedience is a political
act.”206 However, while a single subject may perform civil disobedience—
something the very collective nature of protests makes impossible—, their
constitutional justification (conscientious objection) is always individual and even,
as some have claimed, an apolitical act.207 In fact, it has been precisely civil
disobedience’s attachment to individual values and basic individual rights (along
with its historical link to the defense of free market principles) what, Douzinas
argues, has granted them liberal justification.208 Moreover, it has been this
attachment to individual rights what impedes civil disobedience from having a
truly political, in this sense collective, meaning.209
In order to overcome individual rights’ intrinsic limitation, as isolating carapaces
upon which an apolitical individual dichotomized from the State is configured,
plural membership must be embraced.210 The true meaning of disobedience, one
betrayed with too much emphasis on individual rights, rests—Laudani, citing
Walzer, argues—“on a ‘shared moral knowledge,’ on a series of obligations toward
a handful of principles that are, at the same time, ‘commitments to other men, from
whom the principles have been learned and by whom they are enforced’.”211
To be effective, it must join the ideal discourse of the principles that govern
a political community to the concrete living conditions of those who
206
RAWLS, A THEORY OF JUSTICE, supra note 178, at 321.
QUILL, CIVIL DISOBEDIENCE, supra note 179, at 13-4.
208 DOUZINAS, PHILOSOPHY AND RESISTANCE, supra note 2 at 89-92.
209 LAUDANI, DISOBEDIENCE IN WESTERN POLITICAL THOUGHT, supra note 177, at 116.
210 Id. at 117.
211 Id. at 116.
207
76
practice it, to the ‘mutual engagements’ of responsibility by the participants
and to the sharing of a ‘community of laws and values’ that could be in
conflict with those of the state.212
Here, challengers are presented in a dialectic relation with the State, without,
however, contesting its legitimacy. Claims against the State thus, as Laudani puts it,
are partial.213
Is social protest suited to better capture this collective (in the sense of politically
engaging) face? I think it is. In light of the critique against civil disobedience, let me
insist on what I briefly mentioned before: the inescapable collective nature of the
rights involved in social protest. As it is well known, Karl Marx was highly critical
of the rights of the man. Rights of the man, he contended, are the rights “of egoistic
man, of man separated from other men and from the community.”214 Men and
women, under this view, are isolated one from another, ‘withdrawn into
themselves.’215 Liberty, in this sense—and as Marx clearly explains—“is not
founded upon the relations between man and man, but rather upon the separation
of man from man. It is the right of such separation, the right of the circumscribed
individual, withdrawn into himself.”216 In support of his view, Marx cited the
individualizing character of the right to property—not totally out of the place
212
Id. at 117.
Id. at 117-8.
214 Karl Marx, On the Jewish Question, in THE MARX-ENGELS READER 26, 42 (Robert C. Tucker ed.
Norton 1978 2nd ed.) (1844).
215 Id.
216 Id. at 43.
213
77
when it comes to civil disobedience217—to exemplify how the rights of the man are
in private interest.218 It is not only that the rights of the man further private
interests, but also that they are opposed to man’s social ties. Society, ‘mutual
engagements’ of responsibility—to take the words used earlier by Laudani—
“appears as a system which is external to the individuals and as a limitation of his
original independence,”219 said Marx.
How can a political community be formed where rights facilitate isolation and
foster egoism? It cannot, unless we resort to common engagement. Rights of the
citizen, the other rights upon which Marx passed judgment, permit this communal
existence, for these rights are of a different nature: collective. They presuppose a
joint intervention on defining the fate of the political community—which is also
presupposed.220 These rights permit—although Marx put it negatively as he
criticized their subjugation to the rights of the man—the establishment of the
political State and the composition of civil society into related individuals: a
political man and a political woman.221
217
See, Leo Martinez, Taxes, Moral, and Legitimacy 1994 BYU L. REV. 521 (1994) (arguing some
citizens may find the duty to pay taxes unjust and therefore disobey on the grounds of private
property). Henry David Thoreau’s decisive essay, Civil Disobedience, was also about taxes, but
founded on totally different grounds: his contention was that citizens should not contribute to
finance what he considered to be an unjust war. Henry David Thoreau, Civil Disobedience (Nancy L.
Rosenblum ed., Cambridge: Cambridge University Press, 2000 repr.) (1849) (“If a thousand men
were not to pay their tax bills this year, that would not be a violent and bloody measure, as it would
be to pay them, and enable the State to commit violence and shed innocent blood. This is, in fact, the
definition of a peaceable revolution, if any such is possible.”).
218 Marx, On the Jewish Question, supra note 214, at 42-3.
219 Id. at 43.
220 See the introductory text of Jeremy Waldron to Marx’s On the Jewish Question in his edited
volume ‘NONSENSE UPON STILTS’: BENTHAM, BURKE, AND MARX ON THE RIGHTS OF MAN 131-32 (Jeremy
Waldron ed.,1987).
221 Marx, On the Jewish Question, supra note 214, at 46.
78
Social protest is an exercise of the rights of the citizen.222 Social protest is collective
at its roots and protected by rights that cannot be properly understood but in a
collective fashion.223 Indeed the relevance, and actual manifestation, of these rights
cannot be fully grasped if considered as exercised by individuals that are
aggregated to one another; however, they can be fully grasped if they are
considered a political, and therefore collective, exercise in itself.224 Consider, for
instance, Garcia v. Bloomberg, which involved a claim filed by occupiers who were
arrested when crossing the Brooklyn Bridge in support of Occupy Wall Street. One
of the claims stated that they had not been given a fair warning by the police that
they were not permitted to walk onto the bridge’s vehicular roadway. While the
NYPD submitted video footage showing that they did in fact notify protesters of
imminent arrest—before proceeding to arrest some 700 protesters—, the Court
reasoned on the grounds of the collective body protesting: while some of the
protesters—those walking closer to the officers carrying bull horns—may have
222
I accept here that, under conditions of modern constitutional States, the difference between the
rights of the man and the rights of the citizen is not so much a matter of ontology of the rules (yet
the right to assembly cannot be exercised but in communion with others) involved, but on the
conditions of their definition, appropriation and exercise. See, Staughton Lynd, Communal Rights, 62
TEX. L. REV. 1417, 1422-3 (1983-4) (The first is that rights do not come neatly divided into
inherently individual and inherently communal rights. Most rights are sufficiently ambiguous that
they can be pushed in different directions by political and intellectual struggles). See also, RICHARD
BELLAMY, POLITICAL CONSTITUTIONALISM. A REPUBLICAN DEFENCE OF THE CONSTITUTIONALITY OF DEMOCRACY
30-1 (2007) (discussing freedom of speech as a public good rather than as an individual right).
223 Lynd, for instance, mentioned the “right[s] to engage in concerted activity” as a clear
manifestation of what he called ‘communal rights.’ Lynd, Communal Rights, supra note 222, at 1423.
Although politically motivated, civil disobedience is precisely justified on exclusion from politics,
namely on individual rights where those taking part are individually considered.
224 Id. 1424.
79
heard the warning, some of them certainly did not hear it.225 In other words,
protesters become, by the very same act of protests, a we.226
D. Continuity
Fourth, displays of joint action operating through non-institutional means and
aimed at contending political and cultural authority become a social movement as
they show some “degree of temporal continuity.”227 Admittedly, more than an
intrinsic feature, continuity becomes a necessity if social movements want to
succeed in achieving “the kinds of changes movements pursue.”228 The same holds
for those who want to succeed in advancing new constitutional understandings. In
any case, continuity is not required in social protests. In fact, their connection with
social movements might be purely contingent. This signals that not only are they
but one of the means social movements resort to, but also social protests’
autonomy from them. For one thing, what defines social movements is not their
public salience, but their shared identity. Many protests sustained in time do not
necessarily signal there is a social movement behind them, and, by the same token,
one single sporadic act of protest might be a manifestation of a solid social
225 Garcia v. Bloomberg, at 488-9 (“While the demonstrators might have inferred otherwise if they
had heard the bull-horn message, no reasonable officer could imagine, in these circumstances, that
this warning was heard by more than a small fraction of the gathered multitude.”).
226 Lynd, Communal Rights, supra note 222, at 1427 (arguing we engage in concerted action because
a group is experienced as a reality in itself; “I do not scratch your back only because one day I may
need you to scratch mine. Labor solidarity is more than an updated version of the social contract
through which each individual undertakes to assist others for the advancement of his or her own
interest.”).
227 David A. Snow et al., Mapping the Terrain, supra note 10, at 10-11.
228 Id. at 11.
80
organization.229 For another, we should also notice, as I did above, the
phenomenon of spontaneous protests. These acts of unbidden grievances lack
continuous machineries upon which they are maintained.
Of course, from a constitutional viewpoint, social protests are granted
constitutional protection no matter their continuity. One single (sporadic) act of
protest will (or should) be granted constitutional protection, as much as more
sustained displays. Constitutions do not provide protection, nor even strengthen
protection, depending on how much an individual exhibits sustained exercise of
his or her rights. In fact, recent experience suggests that ‘prolonged’ exercise of
rights might actually have counterproductive results, thus
diminishing
protection.230
Of course, the success of the political grievances expressed through protest, as
noted above, depend on a large extent to being sustained efforts. Constitutional
readings will seduce the public (creating social power) and the avenues of political
will-making (turning that social power into political power) as long as they are
able to convince them of their rationality, necessity, goodness, and so forth.
However, from a constitutional rights viewpoint, even single acts of protests are
covered and protected.
229
Diani, The Concept of Social Movements, supra note 9, at 16.
It was, in fact, a prolonged exercise of assembly rights what proved critical to deny
constitutional protection to occupiers in Toronto. Batty, 2011 ONSC 6862, at paras. 64, 92-6, 104
(where a Toronto court told protesters that the trespass notice the City issued would only restrict
their protests to 19 hours a day).
230
81
Conclusions
This chapter has been devoted to the introductory analysis of social movements.
As I noted at the beginning, my interest was primarily to enquire about social
movements: about their place in, and the role they have played in the
comprehension of, our democracies. In answering these questions I turned to
sociology. For one, the treatment social movements have received in sociology has
been more extensive than the treatment accorded by their legal counterpart. For
another, terminology in sociology, mostly drawn from empirical research, is richer
and clearer—despite the absence of any canonical definition.
As noted, social movements are mostly defined as non-institutional in character, a
feature that has not prevented them from relating to, and being influenced by, the
State’s institutional avenues. Their place mainly outside the institutional channels
of participation also explains why it is often said they have played a key role in
expanding democracy’s understanding, for democracy’s meaning has been pushed
to transcend the pure institutional arena to also encompass these new forms of
representation
(self-representation,
self-authorization
and
discursive
representation) and participation. Their impact has also been felt at the
institutional level. Some of the achievements attained by social movements have
been precisely to open governmental channels—to include larger participation—
and to help eliminate undemocratic obstacles we now consider evil—as was the
case of the civil rights movements. However, I also noted institutional exclusion
82
might also bring important benefits in keeping a flourishing civil society
unconstrained.
In the end, I finalize by narrowing my analysis down from social movements to one
of its manifestations, namely social protests. I focused on social protests because,
contrary to other means social challengers may resort to, social protests seem to
face higher opposition. They are noisy, they cause disruption, they take place on
the streets, and, contrary to the legacies of constitutional liberalism regularly
endorsed, they seem to give tumults, rather than reason and paused reflection, a
say in politics. Unsurprisingly, answers to social protests have usually been
accompanied with the State’s strongest tool: criminal law. A tool that, as Sajó
argues, is used against certain forms of collective display, arguably those which
stand against hegemonic relations of power—as noted, the very thrust behind a
mobilization.
Despite this current state of affairs, I finalized by suggesting that social protests
exhibit some proper characteristics that should take constitutional analysis to
pause and reflect before restrictions on protests, for protests have not only
contributed to enhance democratic governments (to produce “good laws”), but
also to show with their own action that constitutions are unfinished projects
whose very understanding, included that of rights involved, is to be defined
politically.231 The notion that constitutions are unfinished projects means to
231
HABERMAS, FACTS AND NORMS, supra note 75, at 369-70, 383-4 (arguing one of the key features of
social movements is the self-referential capacity to make use of rights and, at the same time,
“interpret, defend, and radicalize their normative content”).
83
conceive constitutions as an activity,232 that is, as open-ended projects where basic
commitments are recognized, yet inevitably left open.233 If politics plays a critical
role in defining that unfinished project, politics, as shown above, should include
non-institutional interventions to prevent selective (if not discriminatory)
readings of what are, allegedly, common commitments.
232
233
GRÉGOIRE C. N. WEBBER, THE NEGOTIABLE CONSTITUTION. ON THE LIMITATION OF RIGHTS 13 (2009).
Id. at 7.
84
CHAPTER 2
RESIST AND PROTEST
I. Common threads
II. Constitutional facts
III. A constitutional distinction
Introduction
“The liberation of the oppressed class is impossible not only without a violent
revolution but also without the destruction of the apparatus of state power …”
V. I. Lenin∗
Constitutional law relates to social protests in at least two different, although
complementary, ways. First, it provides a right-based framework under which acts
of protests are constitutionally protected. Second, it is substantively influenced by
the very same acts of protests it protects. This work deals with both relations. In so
doing, it considers social protests main traits to be (a) a form of collective action
(b) that manifest through street non-institutional means of participation which, (c)
regardless of its temporal (dis)continuity, (d) is aimed at challenging both social
∗
THE STATE AND THE REVOLUTION (Penguin Classics 1992) (1918).
85
and legal/constitutional norms. These traits, instead of a static definition, provide
the base upon which a right-based framework is erected and according to which I
analyze protests.1 I will mainly consider the rights that are usually invoked to
constitutionally protect social protests.2 While rights certainly provide
constitutional protection, imposing duties on the State, they also regulate and
limit—the unavoidable consequence of installing political claims under the
umbrella of liberal jurisprudence3—the time, place and manner of protests.
Besides case-by-case (legal) limitations, there is another, admittedly more
fundamental, political contour the talk of rights configures, for talking about
constitutional/legal rights presupposes the State, a constitution, and its normcreating, norm-applying (most notably, although certainly not limited to, courts)
and norm-enforcing institutions.4 This means that rights need the State to which
the rights are directed and therefore a constitutional order upon which a legal, and
consequently bureaucratic, system is founded.5 In other words, its institutional
form characterizes law. As an institutional system, law “consist[s] of rules which
are subject to adjudication before official bodies,”6 where both those norms and
1
This is particularly relevant in the case of rules related to social protests—and social movements
at large. As I will show below, the influence social protest movements exert on law is not confined
to substantive understandings (meanings), but it also extends to the rules (rights)
protecting/regulating protests.
2 I will do this in Chapters 3 and 4.
3 WENDY BROWN, STATES OF INJURY: POWER AND FREEDOM IN LATE MODERNITY 6-7 (1995).
4 JOSEPH RAZ, THE AUTHORITY OF LAW 105 (1979).
5 NEIL MACCORMICK, INSTITUTIONS OF LAW: AN ESSAY IN LEGAL THEORY 49 (2007) (“The
institutionalization of legal order in a state or other polity depends on the evolution or adoption of
a constitution that establishes the essential agencies of government and assigns powers to them.”);
Joseph Raz, Legal Rights, 4 OXFORD J. OF LEGAL STUDIES 1, 2-5 (1984).
6 Raz, Legal Rights, supra note 5, at 3.
86
those public bodies have been established (constituted) by other norms. As Neil
MacCormick put it, “nothing comes out of nothing.”7 Precisely because law is not
the general model for all other kinds of rights (or of every other time we claim to
be acting pursuant to a right) its scope is limited and cannot account for, let alone
protect, all actions claimed to be in exercise of rights (other than
legal/constitutional rights).8
This formal distinction, formal as law happens to be, is needed to clarify certain
constitutional confusion (or what I see as constitutional confusion) that the
excitement of the recent waves of protests has provoked. Many demonstrators in
Europe, such as the indignados in Spain, and in North America, such as those of the
‘Occupy’ movement, to name a few, saw themselves in a continuum with the
protests of the ‘Arab Spring.’9 Thus, to some, Occupy Wall Street was drawing on
7
MACCORMICK, INSTITUTIONS OF LAW, supra note 5.
I emphasize the notion of law as an institutional system in order to highlight the need for a State,
not with the intention of arguing moral (or other sorts of) rights or values cannot engender positive
(legal/constitutional) rights, although this inference is not necessarily always the case. See, JEREMY
WALDRON, DIGNITY, RANK, AND RIGHTS 19-21 (2012) (“The Covenant gives us the legal ground of the
rights set out in the body of its text, but it is a further question whether this is supposed to be the
legal representation of a moral conception. Maybe every legal idea has a moral underpinning of
some sort; but it would be a mistake to think that the moral underpinning has to have the same
shape or content as the legal ground.”); Jeremy Waldron, A Right-based Critique of Constitutional
Rights, 13 OXFORD J. LEGAL STUDIES 18, 23-8 (1993). See also, RAZ, THE AUTHORITY OF LAW, supra note 4,
at 115 (“Law has limits and this is why we can refer to legal systems and to legal rights and duties
which are not necessarily moral rights and duties, etc.”). Even authors who hold law is part of a
political morality, and therefore assume law is inevitably connected to some kind of moral
standard, acknowledge political rights (those that arise only once a State has been established) are
not necessarily translated into legal or constitutional rights. See, RONALD DWORKIN, JUSTICE FOR
HEDGEHOGS 331-2, 405-6 (2011).
9 I am not arguing against those protesters who saw themselves as inspired by the ‘Arab Spring.’
That the ‘Arab spring’ served as inspiration to many protests in the rest of the world is something
that, although open to criticism, is acknowledged by commentators. See, Sarah van Gelder, How
Occupy Wall Street Changes Everything, in THIS CHANGES EVERYTHING 1 (Sarah van Gelder ed., 2011-2).
My concern, however, is directed at those who see all these different movements as belonging to
the very same wave of mobilizations.
8
87
the “successful model of revolt in Egypt,”10 whereas others in Madison even
chanted, “From Egypt / to Wisconsin / power to the people.”11 The Adbusters—a
cultural critique journal that posted one of the first calls to occupy—asked, “Are
you ready for a Tahrir moment?”12 Hardt and Negri contended these protests,
although with differences, were part of an “emerging cycle of struggles … against
the lack—or failure—of political representation.”13 While many of these accounts,
and others I shall note below, have traced similarities acknowledging regional
differences, it is also true they still hold to the continuum narrative.
Precisely because the first part of this work seeks to show what rights are usually
invoked to protect protests—hence why I talk of the (positive) right to protest—it
is worth distinguishing those who seek to dispute, and finally change, the locus of
political power from those who do not contend the current constitutional scheme,
although they aim at influencing it.14 Whereas those uprising against the State
claiming to embody the constituent power will normally assert they have a right to
do so, they are certainly not thinking in, neither exercising, a sort of right (both
10
Daron Acemoglu & James A. Robinson, Against Political Capture: Occupiers, Muckrakers and James
A. Robinson, in THE OCCUPY HANDBOOK 100, 110 (Janet Byrne ed. 2012). See also, Marlies Glasius &
Geoffrey Pleyers, The Global Movement of 2011: Democracy, Social Justice and Dignity, 44
DEVELOPMENT AND CHANGE 547, 551 (2013) (“The Indignados we interviewed in Barcelona, Paris and
Brussels reported being inspired by the example of what was happening in Tahrir Square, including
the symbolic value of ‘square’ politics. In turn, Occupy Wall Street was inspired by both Tahrir and
the Indignados.”).
11 PAUL MASON, WHY IT’S STILL KICKING OFF EVERYWHERE: THE NEW GLOBAL REVOLUTIONS 184 (2013).
12 MANUEL CASTELLS, NETWORKS OF OUTRAGE AND HOPE: SOCIAL MOVEMENTS IN THE INTERNET AGE 159
(2012).
13 Michael Hardt & Antonio Negri, The Fight for ‘Real Democracy’ at the Heart of Occupy Wall Street,
FOREIGN AFFAIRS, (Oct. 11, 2011), http://www.foreignaffairs.com/articles/136399/michael-hardtand-antonio-negri/the-fight-for-real-democracy-at-the-heart-of-occupy-wall-street.
14 Constitutional influence, what I term a form of popular constitutional interpretation carried out
through protests, is the subject matter of Chapters 5 and 6.
88
constitutional and legal) to be adjudicated by an official body, but a
natural/political right previous or superior to those the civil State guarantees.15
The aim of this chapter is to distinguish between protests as a means of revolution
aimed at acting as constituent power, on the one hand, and protests as a (positive)
right and therefore a constituted entitlement to be adjudicated before official
powers likewise constituted.16 I shall do this by revisiting what I call the
constitutional facts the ‘Arab Spring’ provide us with: namely the fact that many of
the Arab protests and revolts ended with new constitutions in place. I begin by (I)
briefly resuming the common threads some commentators of the recent wave of
protests have found. I will argue that, although all recent experiences appear to
share the main characteristics of social protest movements—most notably their
non-institutional character—, these similarities are largely factual or external. In
order to hold this claim I will (II) highlight the constitutional facts of some ‘Arab
Spring’ protests, where revolutions led, either consciously or unconsciously, to
new constitution-drafting and (III) introduce the very well-known distinction
between constituent power and constituted powers. While this distinction will
15
I want to stress the limiting (without axiological charge) character of law. In fact, one of the most
salient features of the Rule of Law is precisely that it limits the range of actions (and omissions, if
you will) that political power can pursue. Aimed at preventing abuses of political power, the Rule of
Law “insist[s] on a particular mode of the exercise of political power: governance through law.”
Jeremy Waldron, The Concept and the Rule of Law, 43 GA. L. REV. 1, 11 (2008-2009). See also, MARTIN
LOUGHLIN, FOUNDATIONS OF PUBLIC LAW 225 (2010) (“While government is the product of positive law,
the nation owes its existence to natural law alone.”).
16 This work assumes there is a conceptual distinction between the rights to resist, revolution, and
rebellion, on the one hand, and the constituent power, on the other. However, for the sake of space
and in order not to deviate the attention, it will treat the first cluster of terms as one and normally
in interchangeable terms, and will assume the constituent power as a normal step following a
revolution.
89
help in distinguishing two large groups of protesters: those who acted embodying
the constituent power (i.e. Egypt) and those who did not contend the
constitutional scheme under which they acted (i.e. ‘Occupy’), my main interest is to
show that talking about a (positive) right to protest and of protests as popular
constitutional interpretation—the two kinds of relations aforementioned—only
make sense in the latter case.
I. Common threads
There has been a tendency to situate all waves of protests as one single group
pertaining to a sort of global uprising,17 a tendency certainly not shared by all
commentators.18
Thus,
some
see
protesters
as
different
as
Egyptian
revolutionaries and North American occupiers as members of a single global
subject, namely the multitude.19 The multitude would thus bring different agendas
to convergence in the struggle against the “dominance of global capital [that] is
17
WRITERS FOR THE 99%, OCCUPYING WALL STREET: THE INSIDE STORY OF AN ACTION THAT CHANGED AMERICA
11 (2012) (“Occupy Wall Street is part of a global movement that has reached nearly every
continent in the last year [2010]. Although the protests in disparate nations have taken place under
different forms of government … all have expressed a similar outrage with the inequities of
unfettered global capitalism.”).
18 See, ALAIN BADIOU, TIMES OF RIOTS AND UPRISINGS (arguing the historical conditions to bring
revolutionary changes are only present in the Arab mobilizations); SLAVOJ ŽIŽEK, THE YEAR OF
DREAMING DANGEROUSLY (2012) (suggesting that the lack of real alternatives in the ‘Occupy’
movements may bring protesters to fall in love with the movement itself rather than triggering
actual changes). See also, Magid Shihade et al., The season of revolution: the Arab Spring and
European mobilizations, 4 INTERFACE 1 (2012) (although noticing the influence the ‘Arab Spring’
caused in other movements, calling the attention on the eurocentrism with which many
approached the Arab revolutions).
19 Mervat F. Hatem, The Arab Spring Meets the Occupy Wall Street Movement: Examples of Changing
Definitions of Citizenship in a Global World, 8 JOURNAL OF CIVIL SOCIETY 401 (2012).
90
currently shaping the societies of the North and the South.”20 Others have argued
that the ‘Occupy’ movement, including its tactical and political decisions, was
originally envisaged in light of the “emancipatory possibilities of a new political
subjectivity [they saw] in Egypt.”21 Therefore, ‘Occupy,’ here depicted as a global
protest, was not only initiated in light of the ‘Arab Spring’—inspired specifically by
its Egyptian chapter—but also crucially shaped by it.22 Still others have claimed
that both the ‘Arab Spring’ protests and the occupiers in North America represent
examples of pre-figurative politics, “a process in which the objective continuously
changes.”23 Therefore, both groups of movements reject being categorized in terms
of success/failure according to some standard abstractly defined and externally
imposed; on the contrary, they share a common ground where their “outcomes,
initial intentions … [and] ends … mutually evolve, interplay, change and cohere
during or within the [political] practice.”24 Finally, there are those who contend the
occupiers and ‘Arab Spring’ mobilizations belong to contemporary disobedient
movements that “express their opposition to their government’s decisions and
policies” by neither institutional means nor “rallies, mass demonstrations, and
20
Id. at 402.
Sarah Kerton, Tahrir, here? The influence of the Arab Uprisings on the Emergence of Occupy, 11
SOCIAL MOVEMENT STUDIES 302 (2012).
22 Kerton, indeed, talks about how the political subjectivity Tahrir’s occupation gave birth to,
proliferated to, rather than simply called the attention of, North American occupiers (Id.). While she
is totally aware of the limited fashion in which this subjectivity was (literally) translated into North
America (305), she also insists that the “emancipatory possibilities of the Egyptian revolution …
has already been seen in the making possible of a new, or certainly modified, form of dissent in the
Western world” (307). In fact, ‘Occupy Wall Street’ is presented as an emulator of Tahrir Square “in
a symbiotic exchange between the two sites of resistance” (Id.).
23 Mathijs van de Sande, The Prefigurative Politics of Tahrir Square-An Alternative Perspective on the
2011 Revolutions, 19 RES PUBLICA 223, 231-2 (2013).
24 Id. at 237.
21
91
strikes,” but “by consciously refusing to carry out the constituted laws and even
the law-constituting authority of those who hold formal political power.”25 This
would clearly be neither coincidence nor simply iteration. There is also a
substantive similitude as both movements represent forms of a radical alternative
to current societies where there is a “real-time realization in practice” of that very
alternative. “[R]adical change,” as van de Sande writes, “is at once envisioned and
actualised.”26 Finally, there are also those who, being aware that there are two
identifiable threads in the current wave of protests (those seeking “political
reforms,” such as the ‘Arab Spring’ protesters, and those manifesting their political
discontent “regarding the political mismanagement of the socioeconomic crisis and
the erosion of the welfare state,” such as in North America and Europe
respectively), find a common ground in their causes.27 In fact, this reading suggests
that, despite differences in tactics, contexts, and antecedents, this recent wave of
protests shares its thrust towards more egalitarian and democratic societies as
well as its roots “in the political economy in which globalization, financialization,
and neoliberalism had produced vast wealth for the elites, but increasing levels of
social and economic inequality.”28 Movements as different as those revolutionary
waves in North Africa and public occupations across the United States and Canada
would be “diverse manifestations of an international cycle of contention fighting
25
Adam Sitze, Foreword, in RAFFAELE LAUDINI, DISOBEDIENCE IN WESTERN POLITICAL THOUGHT. A
GENEALOGY vii (Jason Francis McGimsey trans., 2013).
26 Id. at 231.
27 Benjamín Tejerina et al., From indignation to occupation: A new wave of global mobilization, 61
CURRENT SOCIOLOGY MONOGRAPH 377, 380 (2013).
28 Id. at 385.
92
against socioeconomic injustice whose primary goals and visions include a
transformation of the economic system to provide greater opportunities, equality,
and personal fulfillment.”29
Corollary of this understanding was Time magazine’s decision to choose ‘The
Protester’ as the person of the year in 2011.30 According to Time, 2011 was
marked by protests that started in Tunisia with the fight against the dictatorship,
continued in Egypt with the revolution against Hosni Mubarak, and later spread to
Madrid, Athens, London, North America, Mexico, and Chile—to name a few.
Although it recognized their “stakes were very different in different places,”31 the
magazine considered all these protests as part of a global step, where the global is
no longer solely reduced to “a fluid worldwide economy managed by important
people;”32 rather, there is a common new citizenry worthy of a same label: ‘The
Protester’ as the person of the year.
There are undoubtedly some common traits empirical accounts have insisted
upon. First of all, and most important, these mobilizations exhibit a
phenomenological similarity that shows people on the streets, occupying public
spaces (or turning spaces that were privately owned into public ones), and who,
depending on the political conditions, exert different degrees of violence. In other
words, this is a wave of protests. Second, it is not only that the people occupy
29
Id. at 386. But see, Stavros Stavrides, Squares in Movement, 11 SOUTH ATLANTIC QUARTERLY 585
587-8 (2012) (emphasizing the similarity—caused by the public staged of the Arab world—in
tactics that spread from Tahrir Square to Europe).
30 Kurt Andersen, The Protester, TIME, Dec. 14, 2011.
31 Id.
32 Id.
93
public spaces, but that they do so politically; their intention is to participate in the
definition of decisions common to all and they resort to protests as the noninstitutional means to present their positions. Third, on average, protesters around
the world were young, educated and belonged to the middle class—in fact, many of
them claimed, perhaps contradictorily with their so depicted fight against
capitalism, that their future was curtailed as power remains unresponsive to their
efforts and merits.33 Fourth, there is also a convergence in the significant use
organizers have made of social media—a large use that admits no single
characterization that can encompass the “diversity of communicative practices”
deployed.34 Finally, there is no doubt all these waves of protests were, and are,
challenging in their nature. A conditio sine qua non of the new social movements to
some, their challenges have ranged from attempts to bring dictatorial regimes
down to question Western democracies’ marriage with large multinationals.35
II. Constitutional facts
33
This contradiction was noticed by ŽIŽEK, THE YEAR OF DREAMING DANGEROUSLY, supra note 18, at 102 (2012). But see, Tejerina et al., From indignation to occupation, supra note 27, at 384 (arguing that,
although the mobilizations started with the call from “young, often college-educated … citizens,” it
rapidly spread and attracted “many other groups, classes, and age cohorts”) and Zeinab Abul-Magd,
Occupying Tahrir Square: The Myths and Realities of the Egyptian Revolution, 111 SOUTH ATLANTIC
QUARTERLY 565 (2012) (“Those who tweeted about Tahrir were not the ones who occupied it,
fought bloody battles against state thugs on its frontiers, died in it, and made the revolution
happen.”).
34 PAOLO GERBAUDO, TWEETS AND THE STREETS: SOCIAL MEDIA AND CONTEMPORARY ACTIVISM (2012).
35 Magid Shihade et al., The Season of revolution, supra note 18, at 11 (arguing waves of protests
were directed at different crisis of hegemony).
94
My intention is not to question the specificities of each of these accounts, many of
which I cannot but learn from, but ask whether these diverse movements can be
located on a common constitutional ground. I wonder whether these different
waves of protests, despite some factual similarities, are expressions of the same
political power. Can we, from a constitutional law perspective, throw all these
protest movements into the same basket?
While protesters can find themselves with, or trigger with their actions, the task of
drafting a new Constitution either consciously or unconsciously—as Hanna Arendt
has argued was the case of 1968 student mobilizations36—, it is a constitutional
fact that some of the ‘Arab Springs’ uprisings were able to contend the locus of
constitutional sovereignty from previous autocratic rulers.37 Whereas some
accounts have emphasized the democratic turn (or the failure to do so) of these
revolts, I limit my analysis to what I shall call the constitutional fact of constitutionmaking.38 In other words, I limit my analysis only to suggest some of the ‘Arab
36
HANNAH ARENDT, ON VIOLENCE 49-50 (1970).
Some authors have argued these revolts are better conceptualized as political, rather than social
revolutions: the former characterized by affecting the operation (even if redefining it) of the State
and the latter by radically transforming relationships of power in society. Ricardo René Larémont,
Revolution, revolt, and reform in North Africa, in REVOLUTION, REVOLT AND, REFORM IN NORTH AFRICA.
THE ARAB SPRING AND BEYOND 1, 2-3 (Ricardo René Larémont ed., 2013).
38 It is not my intention to determine whether those processes of constitution-making were, or have
been, either democratic in character or pacifically concluded, if concluded at all. Some authors have
suggested there are serious doubts as to whether the recent waves of uprisings brought actual
democracy to the region or permitted authoritarian adaption, a debate I notice but do not engage
with here. See, Garth le Pere, The Middle East, North Africa, and the ‘Arab Spring.’ Towards
revolutionary change or authoritarian adaption? 43 AFRICA INSIGHT 1 (2013). But see, Noureddine
Jebnoun, Introduction: Rethinking the Paradigm of “Durable” and “Stable” Authoritarianism in the
Middle East, in MODERN MIDDLE EAST AUTHORITARIANISM: ROOTS, RAMIFICATIONS, AND CRISIS 1, 5ff.
(Noureddine Jebnoun et al., eds. 2013) (arguing the recent Arab uprisings call to reconsider and
reexamine the Western approach to the region that tends to emphasize cultural variables, assumed
37
95
Spring’ protesters were successful in bringing about comprehensive constitutional
changes, changes that were not imposed from abroad.39
As noted above, many commentators agree on the political (repressive and corrupt
regimes responsible for gross violations of individual rights) and socio-economic
(large financial crises accompanied with pervasive economic inequality) causes of
the Arab revolts.40 Some scholars also argue that these uprisings were, in part,
facilitated by political openness these States strategically implemented.41 Both
Egypt and Tunisia, George Joffé notices, have transited from authoritarian rule to
what he and others call ‘liberalised autocracies:’ a model signaled by “partial
political liberalisation” that included the recognition of certain individual rights
and toleration for political dissonance.42 Eventually this liberalization contributed
to the formation of autonomous (“not formally controlled by the State”) social
ethnic resilience, and religious exceptionalism, and even incompatibility with democracy, as ever
present factors that explain enduring authoritarianism).
39 Zachary Elkins et al., Baghdad, Tokyo, Kabul …: Constitution Making in Occupied States, 49 Wm. &
Mary L. Rev. 1139, 1140 (2007-8) (exploring what they call ‘occupation constitutions,’
“constitutions drafted or adopted in the extreme condition of one state having explicit sovereign
power over another”); Noah Feldman, Imposed Constitutionalism 37 CONN. L. REV. 857, 858 (2004-5)
(noticing how in countries such as former Yugoslavia or Iraq constitutions are being “drafted and
adopted in the shadow of the gun”); but see, Hans Agné, Democratic Founding: We the people and the
others, 10 INT’L. J. CONSTIT. L. 836 (2012) (arguing the founding of a State is democratic when agreed
to by as many persons as possible within and beyond the boundaries of the State to be founded.).
40 Kamal Eldin Osman Salih, The Roots and Causes of the 2011 Arab Uprisings, 35 ARAB STUDIES
QUARTERLY 184 (2013); Ibrahim G. Aoudé, Egypt: Revolutionary Process and Global Capitalist Crisis,
35 ARAB STUDIES QUARTERLY 241 (2013); Chibli Mallat, The Philosophy of the Middle East Revolution,
Take One: Nonviolence, 3 Middle East Law and Governance 136, 139 (2011).
41 Joffé, for instance, and in line with ‘political opportunity’ analyses, argues that the cases of Egypt
and Tunisia were more successful in part due to the same political openness, limited as it was, that
those very same States tolerated. In an attempt to legitimize their own autocracies, authoritarian
Tunisian and Egyptian rulers open the constitutional/legal field (thus becoming liberalized
autocracies) to the formation of social movements that eventually proved to be relevant in the
‘Arab Spring’ protests. See, George Joffé, The Arab Spring in North Africa: origins and prospects, 16
THE JOURNAL OF AFRICAN STUDIES 507 (2011).
42 Id. at 511-14.
96
movements, which, through their independent agency, were able to challenge
regime hegemony.43 As Joffé puts it,
liberalized autocracies, ironically enough, set up the conditions for their
own demise by creating space for the evolution of autonomous precursor
movements—ostensibly under regime control—which, in the right
conditions, could evolve into movements of political contention.44
Despite this partial openness, it is also true that a political regime—together with
its Constitution—which offers little, if any, possibilities of redemption for such
structural shortcomings has few chances of surviving. Constitutional regimes
appeal to obedience in light of political faith and trust, not of false idolatry where
empty forms of alleged participation are used to put democratic make-up on
autocratic regimes.45 And faith, Balkin writes, is a matter of constant and ongoing
appreciation that runs in a backward-looking and forward-looking fashion
necessarily tied to present events.46
This has long been held to be true of liberal constitutional regimes.47 John Locke,
for one, argued governmental power is held in fiduciary capacity, which is to say
that the people entrust their institutions with the power to achieve certain ends.48
43
Id. at 514-7.
Id. at 517
45 JACK M. BALKIN, CONSTITUTIONAL REDEMPTION: POLITICAL FAITH IN AN UNJUST WORLD (2011).
46 Id. at 73-4.
47 JOHN LOCKE, TWO TREATISES OF GOVERNMENT 367 (Peter Laslett ed., Cambridge University Press
2005) (1698) (“For all Power given with trust for the attaining an end, being limited by that end,
whenever that end is manifestly neglected, or opposed, the trust must necessarily be forfeited, and
the Power devolve into the hands of those that gave it, who may place it anew where they shall
think best for their safety and security.”).
48 Id. at 366-7.
44
97
Limited as those ends appear under the liberal rubric, what is important is to
notice is that that trust is always under evaluation. By whom? Let John Locke
answer:
To this I reply, The People shall be Judge; for who shall be Judge whether his
Trustee or Deputy acts well, and according to the Trust reposed in him, but
he who deputes him, and must, by having deputed him have still a Power to
discard him, when he fails in his Trust?49
Ronald Dworkin, for another, has made a similar claim. Dworkin wrote that the
legitimacy of a State, legitmacy which he saw certainly as a matter of degree,
“depends on both how a purported government has acquired power and how it
uses that power.”50 Even when States are not fully just to their citizens legitimacy
can be contained only if there are “political processes of correction … available
…”.51
Not only liberals have emphasized the role active vigilant people and political
processes open to the people’s decisive intervention.52 This has also certainly been
the case of republicanism, where the government is always under the vigilant eye
of the citizens. As Pettit has argued, in a republican perspective governmental
49
Id. at 426-7. See also, Benjamin Constant, On the Liberty of the Ancients compared with that of the
moderns, in CONSTANT POLITICAL WRITINGS 307, 326 (Biancamaria Fontana ed., Cambridge University
Press 2003, 9th print.) (“[T]he people who, in order to enjoy liberty which suits them, resort to the
representative system, must exercise an active and constant surveillance over their representatives
….”).
50 DWORKIN, JUSTICE FOR HEDGEHOGS, supra note 8, at 321.
51 Id. at 323.
52 See, RICHARD BELLAMY, POLITICAL CONSTITUTIONALISM: A REPUBLICAN DEFENCE OF THE CONSTITUTIONALITY
OF DEMOCRACY (2007) (emphasizing the procedural openness democracies should show to permit
citizen authorship of collective decisions).
98
legitimacy is evaluated according to how a (politically deemed acceptable) social
order is imposed by a State.53 Thus, interference is generated and is only
acceptable as long as freedom from domination is secured.54
Of course, to secure individual liberty citizens must remain vigilant of their
government—the very same precondition to secure the commonwealth’s
freedom.55 This is why a variant of republicanism hails processes open to popular
intervention; processes open to political contestation, rather than static rights
defined in a depoliticized fashion, are the ways to secure and recognize equal
status, respect, and concern for citizens.56 Republican emphasis on “enabl[ing]
each individual citizen to exercise an equal right of participation in the making of
the laws”57 also justifies the people’s capacity to exert democratic influence and, in
the long haul, imposition of a popular direction on government. As Pettit puts it,
democratic and popular control over government “enables us to explain why and
how government should be forced … to operate on the people’s terms.”58
53
Philip Pettit, Legitimacy and Justice in Republican Perspective, 65 CURRENT LEGAL PROBLEMS 59
(2012) (“The justice question is whether the coercively imposed order is acceptable or justifiable or
desirable; the legitimacy question is whether the coercive imposition of the order is acceptable or
justifiable or desirable.”).
54 PHILIP PETTIT, REPUBLICANISM: A THEORY OF FREEDOM AND GOVERNMENT (2002 rep.) 51 (arguing
liberty as non-domination to be the distinctive of republican thought, where liberty is understood
not as the absence of interference, but “against interference on an arbitrary basis”).
55 QUENTIN SKINNER, LIBERTY BEFORE LIBERALISM 26 (2006 9th prin.) (“A free state is a community in
which the actions of the body politic are determined by the will of the members as a whole.”);
MAURIZIO VIROLI, REPUBLICANISM 49-50 (Anthony Shugaar trans., 2002) (arguing that classical
republicans considered self-government a condition of liberty).
56 BELLAMY, POLITICAL CONSTITUTIONALISM, supra note 52, at 156 (arguing republicanism pushes for a
form of governmental control “in terms of popular controls rather than a priori restrictions on
certain kinds of governmental intervention”).
57 SKINNER, LIBERTY BEFORE LIBERALISM, supra note 55, at 30.
58 PHILIP PETTIT, ON THE PEOPLE’S TERMS: A REPUBLICAN THEORY AND MODEL OF DEMOCRACY 3 (2012).
99
While some scholars have affirmed the existence of an Arab resilience to live under
authoritarian ruling, which is not the same as considering the difficulties to be
found when freed from autocratic governments,59 apparently some Arab
revolutions have also endorsed a fuller comprehension of political citizenship
assuming a (now we know, crucial) say in their political fate.60 Seyla Benhabib, for
instance, claimed that the ‘Arab Spring’ movements were revolutionaries seeking
to establish a “new order of freedom.”61 By practicing what Benhabib sees as a
“modern understanding of politics … they aim[ed] at constitutional reform.”62 Joel
Colon-Rios and Allan Hutchinson make an even more concrete claim: “with warts
and all,” they argue, ‘Arab Spring’ revolutions show “an undeniable embodiment
and manifestation of constituent power at its most insistent and immediate.”63
Constitutional facts accompany their assessment.
First of all, the constitutional facts of Libya support the aforementioned
affirmations that some African revolutions were a manifestation of the exercise of
constituent power. There is little I want to add to what commentators have already
noticed: namely that the Libyan case has proved more difficult as it is the State
59
“How difficult it is for a people accustomed to live under a prince to preserve their liberty, should
they by some accident acquire it as Rome did after the expulsion of the Tarquins, is shown by
numerous examples …”. NICCOLO MACHIAVELLI, THE DISCOURSES 153 (Penguin Classics 2003) (1531).
60 I am not suggesting that Arab uprisings show their protesters have endorsed neither liberal nor
republican ideals. What I am trying to do, however, is to understand how these revolutionaries
embody vigilant communities concerned about their political fate and decided to exercise that
right.
61 Seyla Benhabib, The Arab Spring: Religion, revolution and the public sphere, Eurozine, (May. 5,
2011), http://www.eurozine.com/articles/2011-05-10-benhabib-en.html.
62 Id.
63 Joel Colon-Rios & Allan Hutchinson, Democracy and Revolution: An Enduring Relationship?, 89
DENVER U. L. REV. 593, 600 (2012).
100
itself, besides a new Constitution, what is to be built.64 The extremely personalist
and stateless regime al-Qadhafi promoted was both the problem and part of the
solution, for once the revolution succeeded in bringing him down the whole State
(here used in a rhetorical sense) fell with him. Unsurprisingly, drafting a new
Constitution is part of the tasks ahead.65 As I write this work reports show that the
constituent process, although still facing a large number of substantial obstacles, is
under way.66
Although an authoritarian regime, Egypt instead exhibited some political openness
that—according to Joffé—allowed autonomous social movements to flourish.67
This would explain the relative success social mobilization had in Egypt, at least
when compared with those monarchical regimes where incipient protests
countered, and finally appeased, top-down constitutional reforms.68 As soon as the
uprisings started to calm down, the Armed Forces—a prominent actor in Egypt’s
political and economic life69—took power and decided to supervise the political
future. Moreover, once the uprising started to come to an end, groups that had
64
Mieczyslaw P. Boduszynski & Duncan Pickard, Libya starts from scratch, 24 JOURNAL OF DEMOCRACY
86 (2013) (arguing al-Qadhafi pursued a policy of “statelessness” which has conspired against the
“development of effective governing institutions”).
65 Alia Brahimi, Libya’s Revolution, 16 THE JOURNAL OF AFRICAN STUDIES 605 (2011).
66 Rhiannon Smith, Libya’s Constituent Assembly: Light at the end of the tunnel?, OPENDEMOCRACY.NET,
(Nov. 11, 2013), http://www.opendemocracy.net/arab-awakening/rhiannon-smith/libyasconstituent-assembly-light-at-end-of-tunnel
67 Joffé, The Arab Spring in North Africa, supra note 41, at 511-7.
68 Imen Gallala-Arndt, Constitutional Reforms in Tunisia, Egypt, Morocco and Jordan: A Comparative
Assessment, IEMED2012 141, 142 (2012), available at: http://www.iemed.org/observatorien/arees-danalisi/arxius-adjunts/anuari/med.2012/gallala_en.pdf
69 See, MASON, WHY IT’S STILL KICKING OFF EVERYWHERE, supra note 11, 5 ff. (insightfully explaining the
relevant role the Army played, and plays, in Egypt, as well as its decisive turn in supporting the
revolution).
101
been previously united against Mubarak diverged as to the constitutional agenda.
The more conservative groups in the Muslim Brotherhood (a political coalition and
movement proscribed under Mubarak and which eventually won the first
parliamentary elections post-Tahrir) stood for constitutional reforms whereas the
most liberal wing of protesters decidedly supported a plan for a new
Constitution.70 Although at the beginning the Army established an informal
alliance with the Muslim Brotherhood, a society that originally rendered little
changes to the Constitution,71 the Egyptian process is still open.72 In fact,
Constitutional facts show that there was an exercise, however dramatically
disputed, of constituent power.73 On January 19, 2014, 98.1% of Egyptians said yes
to a new Constitution.74
Finally, Tunisia—which many signal as the place where the ‘Arab Spring’ began—
also supports the notion of African revolutions exercising constituent power.
Tunisia has also been depicted as a liberalized autocracy.75 That said, the most
striking difference when compared with Egypt stems from the minor role the army
70
H.A. Hellyer, Revolution in the Arab World: Egypt and its Challenges, 3 MIDDLE EAST LAW AND
GOVERNANCE 118, 121-2 (2011).
71 Some authors suggest this pact proved to be a counter-revolution with the Army exercising a
kind of “Caesarist role.” Brecht De Smet, Revolution and Counter-Revolution in Egypt, 78 SCIENCE &
SOCIETY 11 (2014).
72 Joffé, The Arab Spring in North Africa, supra note 41, at 521 (arguing this agreement thwarted the
objectives more liberal revolutionaries sought).
73 After the first parliamentary and presidential elections held after the revolution, where the
Muslim Brotherhood succeeded and Mohamed Morsi was elected president, a constituent council
was appointed. This council was declared unconstitutional, triggering new disputes and uprisings
that concluded with Morsi’s ousting—‘enforced’ again by the same Armed Forces—and a newly
instituted government. That has recently consulted a new Constitution. See, Oliver Housden, Egypt:
Coup d’ Etat or a Revolution Protected?, 158 THE RUSI JOURNAL 72 (2013).
74 Egypt referendum: ‘98% back new constitution’, BBC NEWS MIDDLE EAST, Jan. 19, 2014,
http://www.bbc.co.uk/news/world-middle-east-25796110.
75 Joffé, The Arab Spring in North Africa, supra note 41, at 511-7, 518-9.
102
played in the pre-revolutionary political life and during the revolts.76 That
marginal role, along with partial political openness—as Joffé argues—, created
autonomous spheres that social movements were able to capitalize during the
upheavals that started in 2010. It is true that as soon as former ruler Ben Ali fled to
Saudi Arabia differences arose among the opposition.77 Nonetheless, a commission
with members from civil society and political parties was established to set the
bases for a new constituent assembly.78 Its work was not easy; difficulties building
up political coalitions within the constituent assembly were coupled with new
street demonstrations that signaled protesters’ impatience for changes.
Nevertheless, Tunisia elected its second constituent assembly on October 2011,
the very same form of constituent power that defined Tunisia’s political form since
its independence from France in 1956.79 The process proved to be as turbulent as
the Egyptian chapter—the process took a year longer than supposed and was
buffeted by two assassinations and rising terrorism, as well as increasing popular
protests.80 However, Tunisia inaugurated 2014 with a new Constitution that has
76
Id. at 519; Lisa Anderson, Demystifying the Arab Spring. Parsing the differences between Tunisia,
Egypt, and Libya, 90 FOREIGN AFFAIRS 2, 3 (2011) (“Tunisia’s military also played a less significant
role in the country’s revolt than the armed forces in other nations experiencing unrest. Unlike
militaries elsewhere … [the Army] does not dominate domestic economy.”).
77 Anderson, Demystifying the Arab Spring, supra note 76, at 4 (arguing the old opposition tried to
take advantage of the political vacuum, a move that proved fiercely contested by the young
dissidence).
78 Gallala-Arndt, Constitutional Reforms, supra note 68, at 143.
79 Alaya Allani, The post-revolution Tunisian Constituent Assembly: controversy over powers and
prerogatives, 18 THE JOURNAL OF AFRICAN STUDIES 131, 131-2 (2013).
80 Carlotta Gall, Tunisian Constitution, Praised for Balance, Nears Passage, NY TIMES, Jan. 14, 2014,
available at http://www.nytimes.com/2014/01/15/world/africa/tunisian-constitution-praisedfor-balance-nears-passage.html?_r=0.
103
been praised because of its equilibrium between Muslim heritage (most of the time
unduly associated to an undemocratic whiff)81 and individual liberties.82
III. A constitutional distinction
Do revolutions necessarily come with new constitutions? Paul Kahn has suggested
something along these lines. According to Kahn, “[a] successful revolution
establishes its own value by creating its own truth.”83 This is why revolutions are
both negative and positive: they negate the status quo in order to replace it with a
new order.84 Moreover, constitutions, says Kahn, are not only the product of
revolutions, but “the inner truth of revolution[s].”85 At any rate, drafting a new
constitution might be a good sign that a political revolution is beginning to end,86 a
sound “measure of its durable success”87 and an adequate way to concretize
“revolutionary aspirations … while also providing functional elements and
institutions to reinforce these aspirations …”.88 As Landau puts it, accounting for
81
Consider, for instance, the preamble of the new Tunisian Constitution, which states, “Tunisia is a
state of civil character, based on citizenship, the will of the people and the primacy of law.” Id.
82 Id.
83 PAUL W. KAHN, POLITICAL THEOLOGY: FOUR NEW CHAPTERS ON THE CONCEPT OF SOVEREIGNTY 47 (2012).
84 Id.
85 Id.
86 Colon-Rios & Hutchinson, Democracy and Revolution, supra note 63; David Landau, The
Importance of Constitution-Making, 89 DENVER U. L. REV. 611, 611-2 (2012) (arguing revolutions are
sequential events where revolutions occur first and constitution-making later).
87 Mallat, The Philosophy of the Middle East Revolution, supra note 40, at 147; Gallala-Arndt,
Constitutional Reforms, supra note 68, at 141 (“The upheavals and revolts for more economic justice
and political participation in the Arab world will not bear fruit if they are not consolidated with
constitutional reforms.”).
88 John Liolos, Erecting New Constitutional Cultures: The problems and promise of constitutionalism
post-Arab Spring, 36 B.C. INT’L & COMP. L. REV. 219 (2013).
104
revolutions cannot “end at the moment in which the old regime dies. In fact the
new regime needs to organize itself in some fashion, by establishing fundamental
rules.”89 Failure to exercise constituent power following a revolution may turn its
aspirations elusive.90 This is further emphasized by authors such as Hans Kelsen,
for whom revolutions were identified by the replacement of the entire legal
order,91 or more tellingly by Negri, who asserted “[c]onstituent power as allembracing power is in fact the revolution itself.”92
What I want to stress here is that, when that constituent power acts, it does so
unbound by existing rules. Positive rights thus become irrelevant—in the sense
they do not, as they cannot, justify neither the uprising nor the attribution of
constituent power.93 Whereas you can speak of a positive right to protest, you
cannot talk of a positive right to revolution—in the sense I argued before, that is, of
being rights enforceable before an official body. Take Locke once again. According
to Locke, it is for the people to decide whether the prince or the legislative power
89
Landau, The Importance of Constitution-Making, supra note 86, at 614.
Liolos, Erecting New Constitutional Cultures, supra note 88, at 231.
91 Id.
92 ANTONIO NEGRI, INSURGENCIES: CONSTITUENT POWER AND THE MODERN STATE 1 (Maurizia Boscagli
trans., 1999).
93 While rights cannot legally justify neither revolutions nor the exercise of constituent power,
rights (i.e. the right to be prosecuted under a due process of law, the right not to be tortured) might
certainly become relevant once a revolutionary movement has been defeated. As Laudani put it
when reviewing Fichte, a revolution is a way of escaping what revolutionaries see as inhuman
conditions (“an audacious shot for humanity”), but when “unsuccessful, precipitates society into
‘worse and worse misery.’” RAFFAELE LAUDANI, DISOBEDIENCE IN WESTERN POLITICAL THOUGHT 74-5
(2013). Although talking about a different context—the 9/11 terrorists attacks and the U.S.
response—Jeremy Waldron has argued States (where there is one) must respect certain legal, as
well as moral, limits when responding to challengers. JEREMY WALDRON, TORTURE, TERROR, AND TRADEOFFS: PHILOSOPHY FOR THE WHITE HOUSE (2010).
90
105
has acted against their trust.94 The language he resorts to here is very telling, for it
shows the people pass this judgment not resorting to established rules, but
appealing to heaven:
But farther, this Question, (Who shall be Judge?) cannot mean, that there is
no Judge at all. For where there is no Judicature on Earth, to decide
Controversies, amongst Men, God in Heaven is Judge: He alone, 'tis true, is
Judge of the Right. But every Man is Judge for himself, as in all other Cases,
so in this, whether another hath put himself into a State of War with him,
and whether he should appeal to the Supreme Judge, as Jephtha did.95
Although Locke is addressing the people’s prerogative to resist and not setting
forth a theory of constituent power, once the people have resisted the illegitimate
government and returned to a state of nature they constitute new forms of
government in a legal and institutional vacuum.96
The republican tradition holds a similar argument when considering how a
corrupted city, a city not oriented to the common good, could get rid of their rulers,
for once corruption has become so widespread in a city neither amending laws nor
fixing institutions would be enough.97 Rather, new laws and institutions must be
94
LOCKE, TWO TREATISES OF GOVERNMENT, supra note 47, at 426-7.
Id. See also, JEREMY WALDRON, GOD, LOCKE AND EQUALITY: CHRISTIAN FOUNDATIONS IN LOCKE’S POLITICAL
THOUGHT 225 ff (2002).
96 JOEL COLÓN-RÍOS, WEAK CONSTITUTIONALISM: DEMOCRATIC LEGITIMACY AND THE QUESTION OF CONSTITUENT
POWER 8 (2012) (arguing a truly democratic interpretation of the constituent power should take us
not to confine it solely to resistance moments, but “at any moment in the life of a constitutional
regime …”).
97 MACHIAVELLI, DISCOURSES, supra note 59, at 160-2. See also, ISEULT HONOHAN, CIVIC REPUBLICANISM
102-3 (2002) (explaining the North American independence along the lines of revolution as the
means “to restore virtue” of Americans in light of what they saw as a corrupted crown).
95
106
introduced all at once.98 To do this, Machiavelli warned, “normal methods will not
suffice now that normal methods are bad.”99
Hence it is necessary to resort to extraordinary methods, such as the use of
force and appeal to arms, and, before doing anything, to become a prince in
the state, so that one can dispose it as one thinks fit.100
In a similar vein, although in a positive sense, Pettit has argued that accepting the
legitimacy of a regime implies “that attempts to change unjust laws should be
restricted to measures that are consistent with the regime’s remaining in place.”101
Contrario sensu, illegitimacy of the government triggers recourse to means outside
the system.102 In republican thought, Pettit had previously argued, “the people are
entitled to challenge the government about how far and how well it is discharging
that [political] trust [that the rules were required to discharge on behalf of the
people].”103 This continuous assessment, where sovereignty actually resides,
98
MACHIAVELLI, DISCOURSES, supra note 59, at 163.
Id.
100 Id.
101 Pettit, Legitimacy and Justice, supra note 53, at 62. Ronald Dworkin made a similar argument
when discussing the kind of political obligations our living together under, and acting through, a
State engenders. He called this a political, not a constitutional (less a legal), right. In fact, he
distinguishes between regular means available to correct unjust or unsound policies, on the one
hand, and revolution, on the other, when “the stain is dark and very widespread … and if it is
protected from cleansing through politics …”. DWORKIN, JUSTICE FOR HEDGEHOGS, supra note 8, at 3203.
102 This is an argument I intend here to be rhetorical. In fact, Pettit is quite clear about the
impossibility of returning to a state of nature as “we are born into a political world.” Pettit,
Legitimacy and Justice, supra note 53, at 75-6. However, by the same token is important to notice
the exercise of constituent power is exactly that: recognition of the necessity of shaping our
political community. What is crucial, though, is that by exercising constituent power we shape our
political and public arrangement in a different fashion than it was established in the previous
(illegitimate) regime.
103 PETTIT, REPUBLICANISM, supra note 54, at 202.
99
107
includes the people’s “right to resist and overthrow” the government “that fails to
do its job.”104
Unusual means, therefore, are precisely those means that take place—to
paraphrase Pettit—once the regime does not remain in place. And once a regime
does not remain in place, its institutions and regulations wither away with it. As
Landau notes quoting Kelsen, in a revolution “the constitution is altered or
replaced by some process other than the one contemplated in the text.”105 Antonio
Negri makes a similar claim: from a juridical viewpoint the constituent power
shows the paradox of being “a power rising from nowhere organiz[ing] law.”106
It could hardly be in a different fashion. Carl Schmitt explained that the political
subject who decides the political and juridical form of the community exercises the
constitution-making power.107 This power is unbound, unlimited and ever present,
which signals a political break with the anterior political form (a previous
constitution).108 Hence, this power of political decisiveness and violence (in the
sense of the breaking with the past and giving place to a new order) needs not be
regulated—although a certain procedure will be necessary to channel its political
104
Id.
Landau, The Importance of Constitution-Making, supra note 86, at 616.
106 NEGRI, INSURGENCIES, supra note 92, at 1.
107 CARL SCHMITT, CONSTITUTIONAL THEORY 125 (Jeffrey Seitzer trans. & ed., 2008).
108 Id. at 125-8.
105
108
creativity.109 It is a power that positively constitutes but is not constituted, let
alone constrained, channeled, or limited by previous rules.110
Could it be that constitutions contain provisions recognizing the constituent
power? Could State constitutions contain and protect the right of those who seek
to fund the very same constitutional scheme anew? Experience shows this is
hardly the case.111 Immanuel Kant, for one, rejected such a possibility. Kant
thought that would imply a contradiction in its own terms.112 “There cannot be a
law which permits lawlessness”—Beck wrote reviewing Kant’s ideas on the
matter.113 In fact, he noticed such constitutions would confess their own
precariousness, namely that constitutions depend on the will of the people and, to
a certain extent, on their political and social practices.114 Antonio Negri, although
with a different emphasis, has also noted that the constituent power “resists being
constitutionalized.”115 Schmitt also rejected the idea:
The constitution-making will of the people is an unmediated will. It exists
prior to and above every constitutional procedure. No constitutional law,
109
Id. at 127-8, 130-2.
Id. at 136-42, 145-6. See also, KAHN, POLITICAL THEOLOGY, supra note 110, at 52-3 (arguing
constituting will contains the rule which it institutes, but it is not subject to any rule).
111 Landau, The Importance of Constitution-Making, supra note 86, at 616.
112 See, Lewis W. Beck, Kant and the Right of Revolution, 32 JOURNAL OF THE HISTORY OF IDEAS 411, 4135 (1971). Cass Sunstein made a similar argument, although related to the right to secede. Though
secession “might be justified as a matter of politics or morality,” he argued, “constitutions ought not
to include a right to secede.” Cass R. Sunstein, Constitutionalism and Secession, 58 U. Chi. L. Rev. 633,
633-4 (1991).
113 Id. at 413-4.
114 Id. at 414 (“Revolution abrogates positive law; therefore positive law and its system condemn
revolution. Revolution means return to nature, which the contract establishing positive law
renounces.”). See also JEREMY WALDRON, THE LAW 63-8 (1990) (arguing constitutions, either written
or not, depend on social practices, deference and acceptance from those who are bound by them).
115 NEGRI, INSURGENCIES, supra note 92, at 1.
110
109
not even a constitution, can confer a constitution-making power and
prescribe the form of its initiation.116
Others have suggested the opposite. Landau, for instance, discusses the possibility
of constraining the exercise of constituent power. Why should we, Landau asks,
consider “constitution-making as a kind of legal black hole” open to majoritarian
taking?117 Colon-Rios and Hutchinson argue constitutions themselves could
channel the exercise of constituent power, although they have suggested this in
order to radicalize democracy by permitting the permanent actualization of the
people’s fundamental will.118 Though they recognize constituent power is hard to
handle, they also highlight Schmitt’s Constitutional Theory passages where he
argues some form organization or procedure would be needed to implement the
people’s will. From here they go on to suggest that “constitutions should approach
revolutions and constituent power as offering opportunities for correcting existing
injustice through radical and participatory change.”119
A recent research by Tom Ginsburg et al. shows constitutions that recognize the
‘right to overthrow your government.’ They conclude that mostly all constitutions
116
SCHMITT, CONSTITUTIONAL THEORY, supra note 107, at 132.
Landau, The Importance of Constitution-Making, supra note 86, at 612. But see, Carl J. Friedrich,
The Political Theory of the New Democratic Constitutions, in CONSTITUTIONS AND CONSTITUTIONAL
TRENDS SINCE WORLD WAR II 13, 23-4 (Arnold J. Zurcher ed., 1955 2nd ed.) (showing constitutions
might also seek to place “enemies of the constitution beyond its protective frame,” in clear
reference to “Hitler’s seizure of power ‘from within’”).
118 Colon-Rios & Hutchinson, Democracy and Revolution, supra note 63, at 605-9.
119 Id. at 606. But see, Emilios Christodoulidis, Against Substitution: The Constitutional Thinking of
Disensus, in THE PARADOX OF CONSTITUTIONALISM: CONSTITUENT POWER AND CONSTITUTIONAL FORM 189,
204 (Martin Loughlin & Neil Walker eds., 2008) (arguing processes of constitutional actualization
of the constituent will are open to ‘involution,’ where “modalities of responsiveness and
questionability renewal may remain bound to the pathways of the constituted …”).
117
110
that include a provision of the kind I’m discussing here do it either as a “forwardlooking tool that constrains future government abuse, empowers national
citizenry, and acts as an insurance policy against undemocratic backsliding,” or as
a “backward-looking justification for coup-makers who seek retroactive legitimacy
for whatever political crimes placed them in a position to be making a new
constitution in the first place.”120
Even if constitutionally included, are these provisions to be adjudicated by an
official body? These provisions seem largely unnecessary or at best merely
rhetorical, as many of them put their enforcement in the hands of the citizens
themselves and, as experience has shown, they cut both ways.121 It is true that
under some circumstances official bodies may be caught up in resistance,122 but
this is far from being a form of adjudication or enforcement. Moreover, official
bodies might actually act in an opposite fashion by sending confusing political
signals.123 There is also the risk, as the recent events in Egypt124 and Turkey125
120
Tom Ginsburg et al., When to Overthrow your Government: The Right to Resist in the World’s
Constitutions, 60 UCLA L. REV.1184 (2013). At any rate, they also note the right to resist operates as
a second-rate right, namely “one by which other substantive rights are made secure.” This is why
“the constitutional text cannot really be considered the source of the right per se” (at 1193-4).
121 Id. at 1124-5.
122 Say in the case a branch or agency is unwilling to enforce governmental decisions they regard as
illegitimate.
123 This is what occurs when official bodies continue fulfilling their duties, despite a parallel
initiation of constituent power. Amid Quebec’s attempts to secede, the Supreme Court held that,
although it “would have no basis to deny the right of the government of Quebec to pursue secession
should a clear majority of the people of Quebec choose that goal,” Quebec was bound to “respect[]
the rights of others,” including those Québécois who reject the idea and the majority of Canada as a
whole. It is true that the Court rejected supervising political conversations between Quebec and the
rest of the provinces; however, it made clear the legal implications these conversations may have in
terms of the rights of those citizens involved (“Where there are legal rights there are remedies”).
Supreme Court of Canada, Reference re Secession of Quebec, [1998] 2 S.C.R. 217, paras. 77-105.
124 Landau, The Importance of Constitution-Making, supra note 86, at 615.
111
have shown, that bringing official bodies to adjudicate the constitutional contours
on the constituent power might open ways to subvert popular opinion or prolong
the undecisive moment. Although there are some experiences that show courts’
willingness to pass decisions concerning the legality of constituent power
exercise,126 constituent power politically proceeds in face of, in the sense that it
needs not, these judicial decisions.127
Finally, it is true, as I mentioned before, that some scholars have argued autocratic
regimes, by liberalizing their politics, planted the seed of their own future
destruction. However, this does not contradict my claims here, for that
liberalization, which included the recognition of certain rights and a partially
opened public sphere, permitted the spread of a political, rather than judicially
enforceable, sense of injustice. In fact, the contradiction here was permitting
movements to flourish independently from the State and its official (normproducing, adjudicative and law-enforcing) institutions.
The aim behind this section has not been to question that different waves of
protests in the West and in the North African and Middle East regions are not
based on similar (both political and political economic) claims. My only intention
here has been that of drawing a constitutional distinction to show that (i) some of
125
Asli Bâli, Courts and constitutional transition: Lessons from the Turkish case, 11 INT’L J. CONSTIT. L.
666 (2013) (showing how courts can act as bodies helping to shield elitist regimes from democratic
change).
126 Joel Colón-Ríos, Carl Schmitt and Constituent Power in Latin American Courts: The Cases of
Venezuela and Colombia, 18 CONSTELLATIONS 365 (2011) (showing cases where courts have decided
on the exercise of constituent power both “to defend the idea of an unlimited popular will, but also
to limit political [constituted] power in profound ways”).
127 Landau, The Importance of Constitution-Making, supra note 86, at 617 (“the public always has a
residual power to call a constituent assembly to replace the existing political order.”).
112
them decided to push the exercise of constituent power as a way to overcome
those political difficulties, (ii) whereas others have engaged in actions that leave
regimes in place—although turning their backs on them.
As some authors have argued, these waves of protests, despite their global
dimensions, exhibit regional expressions.128 From a constitutional viewpoint—
which I have been trying to stress here— these differences show some of these
movements “have mainly demanded political reforms to initiate or deepen ongoing
processes of democratization”—the cases of Egypt, Tunisia and Libya—while
others show a “massive display of discontent regarding the political
mismanagement of the socioeconomic crisis and the erosion of the welfare
state”129—admittedly, as the facts show, the cases of European and other Western
mobilizations.130 Contrary to their Arab counterparts, protests in the West were
not revolutionary in character, at least not in the sense of triggering new processes
of constitution-making—with the sole exception of Iceland, a process which
eventually failed.131 However, a hasty impulse to put all recent waves of protests in
128
Benjamín Tejerina et al., From indignation to occupation, supra note 27, at 380.
Id.
130 But see, Raúl Sánchez, 15M: Something Constituent This Way Comes, 11 SOUTH ATLANTIC QUARTERLY
573, 575 (2012) (arguing the 15M movement in Spain embodies a “prototype of constituent power
… a work in progress, a radical invention, and an open, intermittent—and in large measure only
incipient—process”).
131 I am totally aware that many of the European protesters and their North American counterparts
have actually pushed a different strategy. Instead of targeting the State and its institutions, they
have rather decided not to pose any specific demands, let alone interact with political
representatives (which protesters claim represent none of them). However, in the best
constitutional light these movements have only become tolerated and politically marginalized (at
least so far).
129
113
the same basket has contributed to obscure this constitutional distinction—and, as
I proceed to argue now, its constitutional consequences.
Conclusions
In an interesting interview held in 2012, Noam Chomsky was asked whether he
saw the Occupy movement as a precursor to a revolution. As he favored the
movement and addressed occupiers many times throughout the duration of the
occupations, it is important to highlight his answer:
To have a revolution—a meaningful one—you need a substantial majority
of the population who recognize or believe that further reform is not
possible within the institutional framework that exists. And there is nothing
like that here, not even remotely.132
Let’s assume, as I explained before in this chapter, it might be the case that all
protest movements that started in 2010 have a common grievance: they all
manifest their discontent with gross economic inequality. Even if this is true— and
I think it is one of the main reasons that explains the connection among recent acts
of resistance—, a distinction must be drawn from a constitutional law viewpoint.
Simply put, I have aimed at showing that from a constitutional viewpoint
challengers have chosen (either consciously or unconsciously) different means to
advance their discontent.
132
NOAM CHOMSKY, OCCUPY! 48 (2012).
114
On the one hand, protesters have pursued a more radical path by overthrowing
governments and exercising their constituent power in order to fund their States’
political shapes anew. This, I argued, has been the case of Libya, Egypt and Tunisia.
On the other, protesters have not defied the locus of constitutional legitimacy,
although they certainly aimed at influencing its comprehension. Furthermore,
these protesters not only have acted assuming the regime would remain in place,
but have also sought protection for their actions of dissent from it. This is a
sensible path since it only makes sense to talk of a positive right to protest
assuming the State remains in place—with all its advantages and disadvantages
that I shall explore in the following chapters.
115
CHAPTER 3
THE (POSITIVISTIC) RIGHT TO PROTEST: FOUNDATIONS
I. ‘A deteriorated right’
A. Rights
B. A (positivistic) right
II. Freedom of expression
A. Protests as expressions
B. Expression as a right
III. Freedom of assembly
A. Freedom of assembly as an independent right
B. TPM regulations and public order
Introduction
“Aturem el Parlament, no deixarem que aprovin retallades.”∗
∗
“Stop the Parliament. We won’t permit further cuts,” stated a banner opened before the
provincial Parlament in Catalonia, where protesters of the 15M movement intended to impede
members of the Congress from entering the building. They did so by throwing objects at the
Congressmen, circling and shaking authorities, and blocking the entrance. Protesters were
accused of attacking the institutions of the State and assaulting Parlament members. La fiscal
pide penas de cinco años y medio de cárcel para los 20 acusados de asediar el Parlament [The
prosecutor asks for 5.5 years in prison for 20 accused of besieging the Parliament],
LAVANGUARDIA.COM, May. 17, 2013, available at
http://www.lavanguardia.com/politica/20130517/54373612927/fiscal-pide-cinco-anosmedio-acusados-asediar-parlament.html.
116
To talk of the positive right to protest assumes the existence of the State and
that the regime remains in place. Seen in this light, the right to protest is a
constituted right, a right whose existence and protected exercise largely
depends on the State. This is what (legally and constitutionally) distinguishes
the protests that occurred in North Africa, on the one hand, from the protests
that Western countries witnessed, on the other. Whereas the former were
aimed—and up to a certain point successful—in bringing the regimes down to
be replaced by new constitutional decisions, the latter have largely operated
within a constitutional scheme protesters have not crucially contested.
This chapter deals with this latter form of protests. It deals with the positive
right to protest. It starts (I) insisting on its constituted character. This means
the right to protest is sympathetic to the regime remaining in place, which
brings both advantages and limits. In any case, it is a (A) positive right different
from the right to resist, which does not need the civil state. (B) Avoiding a static
definition of rights and stressing their institutional implications, it then
proceeds (II) to describe the (positive) rights normally invoked to
constitutionally shield protest. Although largely descriptive, this section also
advocates for a certain interpretation (certainly based on experience) of these
rights as the most consistent with a constitutional theory sensitive to protests
as means of political participation.1
I. ‘A deteriorated right’
1
This might be a largely unavoidable path, which follows from the intrinsically aspirational, as
well as descriptive, character many constitutional provisions exhibit.
117
Professor Costas Douzinas argues that the right to protest is a deteriorated
version of the right to resistance. According to him, liberal constitutionalism
diluted the right to revolution by excluding its wording from constitutions2 and
providing a surrogate instead: “[a] modest right to protest against laws and
policies without challenging the social order … included in constitutions and
human rights documents.”3 Therefore, the right to protest, rather than being
what once was the right to question the founding principles of a resisted order,
has become “an example of ‘Speakers’ corner’ mentality: a place for people to
‘let off steam’ and for the political order to claim a variable degree of tolerance
and broadmindedness.”4 While resistance cannot be prevented from (ever)
returning when there is a mismatch between the written laws (constitutions,
etc.) and the popular sense of (in)justice,5 the right to protest would at best
signal only its beginning.
Professor Douzinas is right in the sense I have been arguing here: that the right
to protest is a positive (and therefore constitutionally protected) right, whereas
the right to resist (as well as to rebellion and/or to revolution) need not to be
adjudicated by an official body. While the former presupposes the State as its
condition of efficacy, the latter is natural6 in the very limited sense that the civil
2
COSTAS DOUZINAS, PHILOSOPHY AND RESISTANCE IN THE CRISIS 82-3 (2013).
Id. at 83.
4 Id.
5 Id. at 77-81, 83-4. I cannot stop noticing certain ambivalence here, for if resistance can never
be wished away, that is to say, if constitutional provisions denying (or at least not explicitly
recognizing) the right to resist will not stop resistance from returning, then what need is there
to recognize it in a constitutional provision? I discuss some alternatives below.
6 RAFFAELE LAUDANI, DISOBEDIENCE IN WESTERN POLITICAL THOUGHT. A GENEALOGY 56 (Jason Francis
McGimsey trans., 2013).
3
118
State is not needed to secure that right.7 In other words, it is also directed at the
State, but to ask its positive intervention. This is, in fact, something Douzinas
also acknowledges. The right to resistance—he argues—is both a fact and a
right, although a right that “does not derive from positive law, domestic state or
international.”8 It derives from a “‘higher law’ … both immanent and
transcendent.”9
As argued above, none of the references to the right to resistance (and to the
consequent exercise of constituent power) are understood in the sense of
positive rights conferred or ratified by institutions resorting to pre-existing
norms that, as it is the case of law, limit the scope of their decisions.10 Quite the
contrary, the people exercising the right to resist and, as one of the
manifestations of their sovereign power, their constituent power are neither
bound nor limited by pre-existing norms.
In other words—to insist with Pettit—, the right to protest is a right the people
can resort to in order to oppose the laws “consistent with the regime’s
remaining in place.”11 As Pettit argues, directed influence over one’s
government can be carried out through institutional means (i.e. voting, public
audiences, and so on) and also non-institutional avenues (i.e. protests on the
7
As Margaret Macdonald wrote, “[t]hough the Roman lawyers conceded that man might be
entitled by natural law to that which he was denied by every positive law, they do not seem to
have related this to any particular doctrine of legal and political authority.” Margaret
Macdonald, Natural Rights, in THEORIES OF RIGHTS 21, 26-7 (Jeremy Waldron ed., 1995 6th prin.).
8 DOUZINAS, PHILOSOPHY AND RESISTANCE, supra note 2, at 95-6.
9 Id.
10 JOSEPH RAZ, THE AUTHORITY OF LAW: ESSAYS ON LAW AND MORALITY 109-10 (2009).
11 Philip Pettit, Legitimacy and Justice in Republican Perspective, 65 CURRENT LEGAL PROBLEMS 59,
62 (2012).
119
streets).12 In any case, accepting the regime’s remaining in place brings both
advantages and limits. Just as the discourse of rights emphasizes, rights are to
be respected and protected by the regime itself. The regime, however, will also
place limits as to how that exercise is to be conducted. Most ironically, those
limits will appear as the State regulates in order to protect the rights in
question.13
Nonetheless, both advantages and limits are rather dynamic than static. This
means that rights content is in constant development and, moreover, that it is
the very action of protesters what influences them.14 This is true both in legal
theory as well as in the sociology of social movements. Legal systems are
successive dynamic legal orders whose content varies without ceasing to be the
very same legal orders. Individuals, and groups as well, feel more comfortable
with the legal order that best fits their expectations—“which is valid hic et
nunc.”15 Something similar occurs when one sees the interaction between social
movements and the laws protecting/regulating their actions, for, as Habermas
has argued, social movements entail a dialectic relation with these rules. While
there are legal and administrative rules regulating the actions social
12
Id. at 62, 80.
I need not insist by now on the crucial political limit that acting with the regime’s remaining
in place implies, namely not being able to overthrown the government.
14 To some, this is a crucial demand under conditions of democratic governance. See, ALLAN C.
HUTCHINSON, THE PROVINCE OF JURISPRUDENCE DEMOCRATIZED (2009). I reserve Chapters 5 and 6 to
discuss how social protests influence constitutional understandings.
15 See, ANDRZEJ GRABOWSKI, JURISTIC CONCEPT OF THE VALIDITY OF STATUTORY LAW: A CRITIQUE OF
CONTEMPORARY LEGAL NONPOSITIVISM 258-9 (2009). I would like to thank Raúl Letelier for having
brought this argument to my attention.
13
120
movements are permitted to perform, at the same time social movements
influence that very same framework by pushing and influencing its limits.16
A. Rights
Any attempt to comprehensively conceptualize rights is doomed to fail. In light
of pervasive theoretical disagreement about the concept of rights, and
considering my aim in this work—distinguishing the so-called right to
revolution and the consequent appeal to the exercise of constitution-making
power from the (positive) right to protest—, it is enough to stress a general
institutional implication of rights,17 namely that rights need (in order to be
authoritatively created, identified, and secured) the regime to remain in place.18
As MacCormick explains, the term ‘law’ seems inappropriate to identify those
rules that wouldn’t be recognized nor applied by courts and tribunals19—and
that would not have any significance to institutional arrangements such as
parliaments. Here constitutions are relevant for they are assigned the role of
16
JÜRGEN HABERMAS, BETWEEN FACTS AND NORMS: CONTRIBUTIONS TO A DISCOURSE THEORY OF LAW AND
DEMOCRACY 369-70 (William Rehg trans., 1998) (“Thus, the institutions and legal guarantees of
free and open opinion-formation rest on the unsteady ground of the political communication of
actors who, in making use of them, at the same time interpret, defend, and radicalize their
normative content.”).
17 See, Jeremy Waldron, A Right-based Critique of constitutional rights, 13 OXFORD J. OF LEGAL
STUDIES 1, 18 (1993). Habermas, for whom the legal order and morality are rather
complementary as they emerged simultaneously, has noticed that the distinctive feature of law
is precisely its institutionalized character. HABERMAS, BETWEEN FACTS AND NORMS, supra note 16,
at 106-7. See generally, NEIL MACCORMICK, INSTITUTIONS OF LAW: AN ESSAY IN LEGAL THEORY 49-58
(2007) (describing the institutions of public law and noticing their necessity in enforcing law).
18 Not surprisingly, these are the kinds of rules that Hart argued to be characteristic of a
modern state and legal system; “the centralized official ‘sanctions’ of the system.” H.L.A. HART,
THE CONCEPT OF LAW 79, 98 (1997). See also, MARTIN LOUGHLIN, FOUNDATIONS OF PUBLIC LAW 286
(2010) (“such rights claims—human rights claims—… have effect only when institutionalized
within an existing governmental regime …”.).
19 MACCORMICK, INSTITUTIONS OF LAW, supra note 17, at 56.
121
providing coherence as to what is going to be deemed a system of law—a
“unitary ultimate law for a state’s legal system as such.”20
Therefore, rights as institutionalized law are directed at the State.21 It only
makes sense to talk of a positive right to protest once we acknowledge the
State’s twofold agency as an ally (it is there to secure and protect our rights)
and as a foe (it limits our rights).22 One of the legal theorists who has explored
this topic is Robert Alexy. Alexy notes that there are a variety of subjective
rights that he divides into rights to something, liberties, and powers.23 In the
case of the rights to something, Alexy has shown that they are better explained
in a three-point structure (relational character), a relation which includes the
State as the addressee of rights.24 While here the State is required to refrain
from affecting rights (defensive rights), to provide factual acts, or to create legal
20
Id. at 57.
Id. at 202 (arguing institutionalized law “provides means [adjudication and legislative] to
make authoritative rulings about practical issues that arouse disagreement”). I’m not here
exploring, neither suggesting, whether rights have any more specific institutional implications.
What are these more specific institutional implications? For instance, one who assumes
constitutional rights place limits as to what legislatures can do will normally allocate reviewing
powers on a branch other than the legislature in order to decide when such limits have been
violated. However, it is equally possible to argue that constitutional rights are rather political.
In such a case constitutions would be inviting, rather than precluding, legislatures to develop
rights. Furthermore, we can still draw a distinction, and not necessarily a correlation, between
legal rights and constitutional rights. See generally, See Waldron, A Right-based Critique, supra
note 17, at 18-28.
22 This is so because this coercive power is put in motion both to constrain as well as to protect
individual acts (freedom, entitlements, etc.). Most strikingly, this also holds true for the State,
for the State and its institutions act validly (legally) where the Rule of Law—“a particular mode
of the exercise of political power”—allows them to do so. Jeremy Waldron, The Concept and the
Rule of Law, 43 GA. L. REV. 1, 11 (2008-2009). HART, THE CONCEPT OF LAW, at 87 and H.L.A. Hart,
Postscript, in THE CONCEPT OF LAW 269 (Penelope Bulloch & Joseph Raz eds., 1997) (“[L]egal
rights and duties are the point at which the law with its coercive resources respectively
protects individual freedom and restricts it or confers on individuals or denies to them the
power to avail themselves of the law’s coercive machinery”).
23 ROBERT ALEXY, A THEORY OF CONSTITUTIONAL RIGHTS 120 (Julian Rivers trans., 2010).
24 Id. at 121-2.
21
122
positions to satisfy rights (positive acts), the relevant fact is that the State is
there to secure the exercise of rights.25
Something similar occurs with legal liberties, for they are also better
understood as three-point relations with the State becoming relevant every
time
it
is
necessary
remove
obstacles—thus
enforcing
the
liberty
constitutionally granted. This is why constitutional permissive provisions are
relevant and, according to Alexy, far from futile norms. He explains this by
distinguishing unprotected liberties from protected liberties. Unprotected
liberties “exist[] when both an act and its omission are permitted.”26 This may
occur either when there is “an explicitly enacted permissive norm” or “in the
absence within the legal system of any commanding or prohibiting norms
covering the act, or its omission …”.27 In the case of constitutional permissive
norms, those of lower hierarchy that contradict the permission (either by
ordering the conduct or imposing a prohibition on the permitted conduct) are
unconstitutional, so the State must sanction its violation.28 State action before
protected liberties is still more obvious, for such liberties are combined with “a
bundle of rights to something and other objective norms which together secure
to the constitutional right-holder the possibility of carrying out the act
permitted.”29 Moreover, as Alexy puts it, “[e]very constitutional liberty is a
25
Id. at 122-7.
Id. at 146.
27 Id.
28 Id. at 146-7.
29 Id. at 148.
26
123
liberty at least in relation to the state.”30 The State should at least “not prevent
the liberty-holder from doing what he is constitutionally free to do.”31
Finally, Alexy describes powers where State action is more straightforward.
Powers are characterized for their capacity to alter the legal state of affairs by
acts of the power-holder.32 An institutional act is what confers that legal
capacity.33
Institutional acts are those which cannot be performed merely on the
basis of natural abilities, but which presuppose constitutive rules.34
This does not mean that the very same act cannot be performed alegally. In fact
it could. The people could, as a matter of fact, go out to the streets in order to
(say) suggest change in governmental policies, but that action would become an
act of legal significance only by means of the constitutive rules (say the
constitutionally enshrined freedom of expression and right to assembly).35 The
legal significance here can be seen once one understands, as Alexy suggests,
that rights encompass a bundle of constitutional rights positions—rights to
something, liberties, and powers.36 For instance, constitutional provisions
would permit protests and, at the very same time, impose obligations on the
State which, at the least, should not arbitrarily interfere with protests and/or
Id., at 149.
Id. As Alexy notes, this is not the only case. What is important to stress here, however, is that
constitutional rights are normally compounded of a cluster of different rights, liberties and
powers. Thus, in the case mentioned above, we can see liberty (to act or refrain from acting)
combined with a right to the non-obstruction of the act (the state should refrain), along with
the power to claim before the courts the infringement of such a right.
32 Id. at 150.
33 Id. at 152.
34 Id.
35 Id. at 152-3 (explaining that one could move the chess figures any direction around the
board, but that those movements would only become chess moves, i.e. a checkmate, in the
presence of constitutive rules of the game).
36 Id. at 159.
30
31
124
also remove obstacles to its exercise.37 Alexy says it explicitly: to appreciate the
role of powers of constitutional positions, “they need to be related to rights to
something and to liberties.”38
I think the need for an institutional framework is still clearer through the
international human rights optic. There, rights are obligations undertaken by
the States, which consequently assume a cluster of negative and positive duties:
to respect, protect and fulfill.39 Rights enforcement is linked to the State, and,
although States are normally taken to enforce these rights by international
courts, it is still up to the States to respect, protect and fulfill their duties. In
other words, enforcement of rights—which to be properly understood in the
international context cannot simply be compared with domestic enforcement—
is a multifaceted process which still sees the State and its institutions (statedriven and state-owned) at its core, despite the help and contributions from
other actors such as individuals and NGOs.40
B. A (positivistic) right
My intention in this section is to offer a brief review of rights normally invoked
to cover and protect protests, but also to show, based on some comparative
experience, what is the best understanding of those rights if we are to keep
37 Here, once again, Alexy notes the importance of understanding constitutional rights in
relation with the State’s capacities. “At this point,” Alexy argues, “constitutional rights norms as
negative competences … limits a positive competence norm.” Id. at 158.
38 Id. at 156. There are, in fact, others who have, although relaying on Hohfeld, suggested a
similar analysis of the right to protest. See, Simon Bronitt & George Williams, Political Freedom
as an outlaw: republican theory and political protest, 16 ADELAIDE L. REV. 289, 304-5 (1996)
(criticizing the Australian High Court for having conceptualized the freedom of political
discussion as an ‘immunity’ and not as a higher level ‘claim-right.’).
39 Asbjørn Eide, Economic and Social Rights as Human Rights, in ECONOMIC, SOCIAL AND CULTURAL
RIGHTS: A TEXTBOOK 9, 27-31 (Asbjørn Eide et al., eds. 2001 2nd ed.).
40 Gerd Oberleitner, Does enforcement matter?, in THE CAMBRIDGE COMPANION TO HUMAN RIGHTS
LAW 249 (Conor Gearty & Costas Douzinas eds., 2012).
125
open the channels of political contestation.41 Understanding the right to protest
as a participatory (citizen) right is particularly pressing under current
governmental practices that, by restricting protests, have privileged political
stability—defined as broadly as you can conceive it.42 This concern with
illegitimate limitations of rights,43 largely due to liberal constitutionalism
uneasiness with non-institutional means of participation, has been one of the
main preoccupations for the international law of human rights.44 The Special
41
I have taken this phrase from JOHN H. ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL
REVIEW 105 (1980).
42 In fact, one of the main unwanted consequences of the recent waves of protests has been that
many governments passed or proposed to pass legislation and/or administrative by-laws
limiting the right to protest, up to the point of turning it impracticable. Ministro Hinzpeter: “Ley
antiencapuchados busca proteger el derecho a manifestarse, pero en paz y sin vandalismo”
[Minister Hinzpeter: “The anti-mask bill seeks to protect the right to demonstrate, but peacefully
and without vandalism], LA TERCERA, Jul. 20, 2012, available at
http://www.latercera.com/noticia/politica/2012/07/674-473308-9-ministro-hinzpeter-leyantiencapuchados-busca-proteger-el-derecho-a-manifestarse.shtml ; Anti-protest legislation
passes Quebec, THE GLOBE AND MAIL, May 18, 2012, available at
http://www.theglobeandmail.com/news/politics/anti-protest-legislation-passes-inquebec/article4186770/; Jeanine Molloff, HR 347 ‘Trespass Bill’ Criminalizes Protest, THE
HUFFINGTON POST, (Mar. 12, 2012), http://www.huffingtonpost.com/jeanine-molloff/trespassbill_b_1328205.html; Spanish Government approves draft law cracking down on demonstrations,
THE GUARDIAN, Nov. 1, 2013, available at www.theguardian.com/world/2013/dec/01/spanishgovernment-approves-law-demonstrations; Gregg Caristrom, Egypt passes law restricting
public protests, ALJAZEERA, Nov.25, 2013, available at
http://www.aljazeera.com/news/middleeast/2013/11/egypt-passes-law-restricting-publicprotests-2013112413847867334.html; Richard Seymour, From Quebec to Spain, anti-protest
laws are threatening true democracy, THE GUARDIAN, Nov. 25, 2013, available at
http://www.theguardian.com/commentisfree/2013/nov/25/quebec-spain-anti-protest-lawsdemocracy; Oficialismo impulsa proyecto para regular protestas callejeras en Argentina
[Government promotes a bill to regulate street protests], LA NACIÓN, Apr. 16, 2014, available at
http://www.nacion.com/mundo/Bloque-oficialista-Argentina-protestascallejeras_0_1408859313.html. In Brazil, following demonstrations that questioned the large
amounts of money spent on the 2014 World Cup, authorities submitted a bill containing vague
definitions of ‘disorder’ and ‘terrorism.’ Amnesty International UK, Right to Protest under threat
as Brazil pushes ‘terrorism’ law ahead of World Cup, (May. 12, 2014):
http://www.amnesty.org.uk/press-releases/right-protest-under-threat-brazil-pushesterrorism-law-ahead-world-cup#.U3C2TeM4ONA.twitter
43 Illegitimate limitations are those that conspire against the (political) right of the people—of
every single citizen—to hold ‘a suitable civic status,’ particularly when it comes to influencing
and directing the State. As Pettit explains, this is the kind of control needed to control that the
“coercive laws of government are not dominating—not the imposition of an alien will …”. Pettit,
Legitimacy and Justice, supra note 11, at 79.
44 I will show below that the European Court of Human Rights (‘ECtHR’) has been the most
active court when it comes time to decide cases.
126
Rapporteurship on Freedom of Expression45 (‘the Rapporteurship’), for
instance, has manifested its concern with the way in which governments in the
region have dealt with pacific demonstrations.46 Thus, reviewing the limitations
imposed to the right to protest in Canada, Chile and Ecuador, among others, it
reminded States that “any restriction on them must be justified by imperative
social interest.”47 Additionally, the Special Rapporteur on the rights to freedom
of peaceful assembly and of association (‘SR’), of the UN Human Rights Council,
has expressed a similar concern.48 By stressing the importance of the right to
peaceful assembly as a “cornerstone in any democracy,”49 it encouraged
governments to avoid criminalizing its exercise.50
45
The Special Rapporteurship is not a member of the Inter-American Commission of Human
Rights (IACHR), but reports before it.
46 There has been no case decided on these grounds by the Inter-American Court of Human
Rights (IACtHR). There is, however, one case pending against Chile. Although mainly related to
the arbitrary application of the antiterrorist law against indigenous peoples in Chile, applicants
have also claimed violation of their right to social protest—based on Article 13 of the American
Convention on Human Rights (freedom of expression). It should be noted that social protest is
one of the new developments of the Inter-American System of Human Rights, which before was
largely devoted to violations committed under authoritarian regimes in the region. Judith
Schönsteiner et al., Reflections on the Human Rights Challenges of Consolidating Democracies:
Recent Developments in the Inter-American System of Human Rights, 11 HUMAN RIGHTS LAW
REVIEW 362, 367-8 (2011).
47 IACHR-Office of the Special Rapporteur on Freedom of Expression, Annual Report of the InterAmerican Commission on Human Rights 2011, OEA/Ser.L/V/II. Doc.69 Vol II. December 30,
2011, at 52; IACHR-Office of the Special Rapporteur on Freedom of Expression, Annual Report
of the Inter-American Commission on Human Rights 2012, OEA/Ser.L/V/II.147 Doc.1 Vol II.
March 5, 2013. The IACHR also held a thematic hearing on State and police violence against
Chilean student demonstrators in 2011. See IACHR, Press Release 87/11, IACHR Expresses
Concern for Violence Against Student Protests in Chile, (Aug. 6, 2011),
http://www.cidh.oas.org/Comunicados/English/2011/87- 11eng.htm.
48 See, Human Rights Council, Report of the Special Rapporteur on the rights to freedom of
peaceful assembly and of association (Maina Kiai), A/HRC/20/27. May 21, 2012.
49 Id. at para. 82.
50 Id. at para. 84 (c).
127
The (positive) right to protest is compounded by a cluster of rights (and each of
these rights by a bundle of legal positions),51 most notably freedom of
expression and the right to peaceful assembly, but also privacy and some
variances of the rights already mentioned. Its multifarious sources and contents
should be regarded as a strength rather than a limitation, for each specific right
has its own conditions which (at least in theory) should render its limitation
more (both politically and legally) costly.52
II. Freedom of expression
Why should we protect freedom of expression? Political philosophical enquiries
have provided different justifications for its protection, ranging from
considering freedom of expression as a tool for discovering the truth53 to
51 Needless to say, this is already clear from a viewpoint different than the legal perspective.
See, JÜRGEN HABERMAS, THE STRUCTURAL TRANSFORMATION OF THE PUBLIC SPHERE. AN INQUIRY INTO A
CATEGORY OF BOURGEOIS SOCIETY 222-35 (Thomas Burger trans. The MIT Press, 1991).
52 But see, Human Rights Council, Report of the Special Rapporteur 2012, para. 4 (showing that,
in practice, cases are governed by, at least, two different types of legislation therefore rendering
difficult to determine which governs the cases’ outcomes).
53 The most famous exposition of this argument is to be found in John Stuart Mill, On Liberty, in
J.S. MILL: ON LIBERTY AND OTHER WRITINGS 1 (Stefan Collini ed., Cambridge University Press 1989)
(1859). Mill summarized the “need” of freedom of opinion in order to not silence opinions that
can be true, not restrict opinions that may contain a portion of the truth, and not censor
opinions that permit contesting commonly assumed truths—whose “doctrine itself will be in
danger of lost, or enfeebled and deprived of its vital effect on the character and conduct: the
dogma becoming a mere formal profession …” (at 53-4). This argument can also be traced back
to John Milton, for whom truth—which “hewed her lovely form into a thousand pieces”—is
susceptible of being known. Arguing against the Licensing Act, Milton claimed freedom of the
press was required so as to always keep truth in motion, for “[t]ruth is comprar’d in Scripture
to a streaming fountain; if her waters flow not in a perpetual progression, they fick’n into a
muddy pool of conformity and tradition.” JOHN MILTON, AREOPAGITICA, 43 (with a commentary by
Sir Richard C. Jebb, Cambridge University Press 1918) (1644). This argument was legally
popularized by Justice Holmes’ famous dissent in Abrams v. United States, 250 U.S. 616, 630
(1919) (“[T]he best test of truth is the power of the thought to get itself accepted in the
competition of the market, and that truth is the only ground upon which their wishes safely can
be carried out.”).
128
conceiving it as a manifestation of personal autonomy.54 Although all these
justifications can work in a complementary fashion,55 none of them is strictly
related to the supervisory role (in the liberal tradition) and to the duty to
participate (in the republican tradition) that is expected of citizens when
dealing with common matters.
While freedom of expression may certainly be important in personal selfrealization, it is its crucial contribution to self-government what better explains
its democratic relevance.56 Democracy, as some have argued, is not achieved
there where a popular element is merely present, but where that popular
element is determining.57 This is why public opinion becomes the final
touchstone of democratic governments. Opinions, Nadia Urbinati observes,
“work as a force of legitimacy by connecting and uniting people inside and
outside the institutions.”58 Opinions, she insists, permit establishing links,
although contingent and in tension,59 between citizens and bridging the
54 This is a non-consequentialist justification that—as Dworkin put it—is regarded to pay due
consideration to each individual’s moral personality in order to decide for ourselves what is
good or bad in life and politics, and to express these convictions to others. RONALD DWORKIN,
FREEDOM’S LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION 200 (2005 repr.). This
distinction between consequentialist and non-consequentialist is also found in Kent
Greenawalt, Free Speech Justifications, 89 COLUMBIA L. REV. 119, 127-30 (1989).
55 Id. at 201.
56 ROBERT C. POST, DEMOCRACY, EXPERTISE, ACADEMIC FREEDOM. A FIRST AMENDMENT JURISPRUDENCE FOR
THE MODERN STATE 1-25 (2012) (arguing that the political core of the freedom of expression is
better explained by its capacity to facilitate “the communicative process necessary for
successful democratic self-governance”).
57 JEREMY WALDRON, LAW AND DISAGREEMENT 235 (1999) (“The demand is not merely that there
should be a popular element in government, but that the popular element should be decisive.
The demand is for democracy, not just the inclusion of a democratic element in a mixed
regime.”).
58 NADIA URBINATI, DEMOCRACY DISFIGURED. OPINION, TRUTH, AND THE PEOPLE 27 (2014).
59 William A. Gamson, Bystanders, Public Opinion, and the Media, in THE BLACKWELL COMPANION TO
SOCIAL MOVEMENTS 242, 244 (David A. Snow et al., eds. 2007) (noting the term public has a
“quasi-collective” condition with different people interested and divided).
129
institutions of the State with the people.60 Opinions authorize representation
and check that representation. As professor Urbinati explains, citing Hume,
public opinion operates as a “force that makes the many easily governed by the
few and the few unable to escape the control of the many.”61 This also explains
why freedom of expression occupies such a significant place in current
democracies: it safeguards “the communicative process by which public
opinion is formed.”62 In other words, freedom of expression protects the
different forms of communication the people resort to, forms of communication
which contribute to shaping public opinion. Finally, public opinion controls
governmental decisions (and omissions).
A. Protests as expressions
Why should we protect social protests? First, social protests are forms of
expression and therefore (should be) protected under constitutional
provisions. In light of the political relevance of the freedom of expression, an
important part of the constitutional debate revolves around the forms of
expressions “we deem necessary for the free formation of public opinion.”63
Today few, if any, voices would contend protected expressions are restricted
only to language. As Post put it, public opinion formation sometimes occurs
“through language, and sometimes, as with picketing and flag burning, it does
not.”64 This does not render the distinction between speech and conduct
constitutionally irrelevant, but shows that “courts are prepared to hold forms
60
URBINATI, DEMOCRACY DISFIGURED, supra note 58, at 27.
Id.
62 POST, DEMOCRACY, EXPERTISE, ACADEMIC FREEDOM, supra note 56, at 14.
63 Id. at 15.
64 Id.
61
130
of conduct, intended by the actors to communicate opinions and so understood
by others,” as protected by freedom of expression provisions.65 The language of
Western constitutional provisions helps in this regard as they recognize ample
means for expression.
By the same token, and precisely because we deem public opinion an important
component of democratic life, we are to avoid imposing a certain fashion in
which public discourse is to be held. András Sajó, for instance, argues that
liberal constitutionalism has had a large influence in modeling the kind of
interactions we consider appropriate of protection, which ends up being the
hegemonic imposition of patterns of dialogue and public engagement ‘which
large part of the community does not entertain.’66 According to Sajó, the liberal
‘rationality paradigm’ has conspired against other forms of political interaction,
such as protests, that bring (sometimes heavy) emotions to the public forum.67
Concealing its own emotions, liberalism has been ready to recognize emotions
in the eyes of those who advocate majoritarian politics, but denied those
sentiments when it comes time to justify prevailing social, economic, cultural,
and legal regimes.68
Public discourse, however, presupposes exactly the opposite. If, as Robert Post
has argued, public discourse is to “enable the formation of a genuine and
uncoerced public opinion in a culturally heterogeneous society,”69 then we
ERIC BARENDT, FREEDOM OF SPEECH 78 (2007 2nd ed.).
This is of course a paraphrase of Justice Holmes’ famous dissent in Lochner v. New York, 198
U.S. 45 (1905).
67 ANDRÁS SAJÓ, CONSTITUTIONAL SENTIMENTS 213 (2011).
68 Id. at 206, 247.
69 Robert C. Post, The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic
Deliberation, and Hustler Magazine v. Falwell, 103 HARVARD LAW REVIEW 601, 639 (1990).
65
66
131
should expand the means through which the people take part in the political
process of public opinion formation. In light of public involvement on matters
of common concern—the understanding of the constitution, for one—we
should follow Richard Parker and “adjust[] the image of the sort of person who
exercises—that is, whom we like to think of as exercising—freedom of
speech,”70 and avoid a privileged status to some forms of collective behavior
that receive better treatment.71
Second, social protests also merit protection because, as forms of expression,
they are part of the public discourse and therefore help shape public opinion.
Protests, in other words, are one of the means the people resort to in order to
participate. This was what the German Constitutional Court held in 1985 when
it reasoned that the right to demonstrate “is derivative of the right to shape
public opinion by means of speech and assembly.”72 This criterion should be
given utmost relevance when protests are the sole means of participation some
groups may resort to. According to Lipsky, relatively weak challengers who
resort to social protests do so not to directly call governmental attention as
they lack that power, but to develop political bargaining power they lack by
addressing, and activating, target audiences whom the government pays
attention to. Communication, seen under this light, operates in a highly indirect
fashion and, to these disempowered groups, becomes central in order to have a
70
Richard D. Parker, “Here the People rule”: A constitutional populist manifesto, 27 VALPARAISO
UNIVERSITY LAW REVIEW 531, 576 (1993).
71 SAJÓ, CONSTITUTIONAL SENTIMENTS supra note 67, at 247.
72 DONALD P. KOMMERS, THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY
396 (Duke University Press: 1997, 2nd ed.).
132
say in public opinion.73 At any rate, the same reasons for protection hold where
protests directly target the State and also where protesters, like those of the
‘Occupy’ movement, target no institutional avenue.74
Considerations that stress the role of social protests in forming public opinion
are thus strengthened with reference to equality commitments—which are also
constitutionally enshrined.75 This is not so much a matter of impact76 as one of
opportunity and capacity to influence.77 A constitutional theory of freedom of
expression that (from a normative viewpoint) cannot dispense from (but rather
has the duty to exalt) commitments to equality cannot rule out forms of
expression that are considered disruptive or disturbing of institutional
politics.78 As Barendt has argued, “the state is not free to determine the
73
Michael Lipsky, Protest as a Political Resource, 62 AM. POL. SCI. REV. 1144, 1146-8 (1968).
However, this might well end up being a circular argument. If they wish to be accommodated
under a constitutional scheme they don’t contend, but want to, say, be left alone (“we have no
petitions for you”), they probably would try to influence the meaning of constitutional
provisions or governmental policies.
75 The equality references being made here, and subsequent references to them, are procedural
rather than substantive; that is, they focus on how equality can enhance and deepen channels of
political participation. This does not mean that other equality considerations are irrelevant to
protests. Roberto Gargarella, for instance, has argued that in the context of social protests
equality assumes different forms. Many of those who protest, in fact, utilize these expressive
means to manifest “grave violations of other fundamental rights.” Were procedural equality
considerations the only moment when equality becomes relevant, we would certainly run the
risk of overlooking the substantive claims related to social justice that protesters are posing.
Roberto Gargarella, Law and Social Protests, 6 CRIM. LAW & PHILOSOPHY 131, 142-4 (2012).
76 Ronald Dworkin, What is Equality? Part 4: Political Equality, 22 U.S.F. L. REV. 1 (1987-1988).
77 URBINATI, DEMOCRACY DISFIGURED, supra note 58, at 50-8 (explaining what she calls the
democratic-influence maxim, an egalitarian approach to political communication between
citizens and institutions). This capacity of influence, Pettit has argued, is exercised with, and
among, other citizens. Therefore, republican democratic control—the one he is interested in
explaining—is a form of “civic or popular control in which you participate with others …”.
Pettit, Legitimacy and Justice, supra note 11, at 77-8.
78 In fact, it could be further argued that freedom of expression is meant precisely to protect the
interactions between institutional and non-institutional politics. In representative democracy,
Urbinati observes, the meaning of the public is enriched “as both state-based (what pertains to
the legal and institutional order) and what is open to all under public scrutiny …”. URBINATI,
DEMOCRACY DISFIGURED, supra note 58, at 40-3.
74
133
boundaries of public discourse.”79 Imposing such a restriction upon the public
sphere will risk silencing certain voices that can only be expressed in this way,
thus preventing the public opinion from having their input. In fact, equality
preoccupations that permeate freedom of expression are important in
noticing—as argued before—that in some instances protests are the only
available means social groups resort to in order to influence public opinion. As
the Rapporteurship put it not long ago,
The most impoverished sectors of our hemisphere face discriminatory
policies and actions; their access to information on the planning and
execution of measures that affect their daily lives is incipient and, in
general, traditional channels to make their complaints known are
frequently inaccessible. Confronting these prospects, in many of the
hemisphere’s countries, social protest and mobilization have become
tools to petition the public authorities, as well as channels for public
complaints regarding abuses or human rights violations.80
By depriving them the right to resort to protests, we are limiting the voices that
shape politics, thus restricting the voices representatives consider.81 However,
BARENDT, FREEDOM OF SPEECH, supra note 65, at 20. Robert Post has made a similar claim noting
what he calls the ‘paradox of public discourse:’ within public discourse freedom of expression
“aspires to suspend legal enforcement” of community values of civility and toleration. Post, The
Constitutional Concept of Public Discourse, supra note 69, at 638-46, 681-2.
80 IACHR-Office of the Special Rapporteur on Freedom of Expression, Annual Report of the InterAmerican Commission on Human Rights 2005, OEA/Ser.L./V/II.124 Doc. Vol III. February 27,
2006, at 121.
81 The Audiencia Nacional of Spain has recently passed a decision which has served to remind
that many social groups resort to public demonstrations because such demonstrations are “the
only means they have to express and spread their thoughts and opinions.” However, it also
linked this egalitarian emphasis on protests with pluralism, for by opening different means of
political participation “the State guarantees the visibility of different opinions present in
society, especially those voices silenced before those other voices overrepresented.” Judgment
79
134
it is not only that we are limiting the scope of voices that shape public opinion;
we are actually excluding a ‘certain kinds of peoples,’ thus “privileg[ing] those
modes and styles of expression associated with the ‘better’ sort of people—
relatively
‘reasonable,’
‘orderly,’
‘articulate’
speech
having
‘social
importance’.”82 Those who are excluded are rendered not self-governing, but
subjects of external power.83
Freedom of expression, therefore, has to be understood as embracing the public
and non-institutional displays of grievances not only because its constitutional
understanding permeated by equality considerations is essentially nonhegemonic,84 but also because public opinion is influenced in a myriad of
ways.85 This is why public opinion is not only attached to those kinds of
discourses that appear as political prima facie.86 While this restrictive approach
would certainly leave unprotected what we now consider core areas of the
freedom of expression,87 it also overlooks the political-moral agency of citizens
of Jul. 7th, 2014, Audiencia Nacional, Sentencia No 31/2014, at 57 (my translations). I would like
to thank José Luis Ugarte for having brought this decision to my attention.
82 Parker, “Here the People rule”, supra note 70, at 577.
83 Pettit, Legitimacy and Justice, supra note 11, at 79 (“If the demos or people are to participate
in exercising kratos or control over government, and if the control they share is to ensure that
the coercive laws of government are not dominating—not the imposition of an alien will—then
what they exercise must involve both influence and direction.”).
84 Robert Post, Law and cultural conflict, 78 CHICAGO-KENT LAW REVIEW 485, 503 (2003).
85 POST, DEMOCRACY, EXPERTISE, ACADEMIC FREEDOM, supra note 56, at 19.
86 As it is well known, some have advocated this position. Meiklejohn argued that the First
Amendment does not protect a ‘freedom to speak.’ It protects the freedom of those activities of
thought and communication by which we ‘govern.’ It is concerned with a public power—a
governmental responsibility—, and not with a private right. Freedom of expression, he held,
should only grant its “unqualified protection” to acts directed at understanding “the issues
which … face the nation” and to pass judgment upon the decisions our representatives make on
those matters. Alexander Meiklejohn, The First Amendment is an Absolute, 1961 SUP. CT. REV.
245, 255 (1961).
87 This inconsistency is noticed in DWORKIN, FREEDOM’S LAW, supra note 54, at 203.
135
to—as I argued before—freely determine how to and according to what means
influence public opinion.88
It is this political face which better explains freedom of expression’s central
place in the current configuration of the right to protest. There is no doubt that
protests might have a value in truth seeking and that some citizens do not feel
that they are expressing their unique individual identities when protesting
(“People are citizens but they are much more,” Greenawalt wrote).89 What the
political comprehension emphasizes is that the individual character of freedom
of expression remains safe but is insufficient.90
That protests are better understood in this political light is almost an
inescapable fact once we notice the collective exercise of rights. Social protests
are, in fact, collective contestations that resort to the streets in order to
influence and direct the government.91 The political meaning of protests lies
not so much on the ontology of the rights involved, but on, as Lynd put it, being
rights that are collectively exercised and understood.92 Social protests
presuppose the exercise of “rights that are only exercised in community with
other men.”93 They are a shared activity, an activity influencing and
(eventually) controlling the government, where one is not alone.94
B. Expression as a right
88
POST, DEMOCRACY, EXPERTISE, ACADEMIC FREEDOM, supra note 56, at 23-5.
KENT GREENAWALT, FIGHTING WORDS. INDIVIDUALS, COMMUNITIES, AND LIBERTIES OF SPEECH 131
(1995).
90 URBINATI, DEMOCRACY DISFIGURED, supra note 58, at 65-6.
91 Pettit, Legitimacy and Justice, supra note 11, at 80.
92 Staughton Lynd, Communal Rights, 62 TEXAS L. REV. 1417, 1429-30 (1984) (arguing we are
talking here of rights that gain their political meaning by being exercised in communion, but
that can also be individually exercised and protected).
93 WALDRON, LAW AND DISAGREEMENT, supra note 57, at 232.
94 Id. at 235-6; Pettit, Legitimacy and Justice, supra note 11, at 77.
89
136
This political understanding of freedom of expression impacts the duties
associated with it. As I argued above, taking on Alexy’s argument, constitutional
rights of the kind Western constitutions exhibit are better understood as
encompassing a bundle of rights: rights to something, liberties, and powers.
Nevertheless, I also take some distance from Alexy as I regard the fulfillment of
rights—in the broadest meaning of this expression—depends on the (joint)
work of all the three branches of government, and not solely on courts. We can
still stick to the language of constitutional rights and stress their political
significance even if there is no judicial enforcement mechanism.95 As Tushnet
contends, constitutional rights limit governments not simply because they are
presented in a text under the name of rights, but because they are publicly
fought.96
It is of course difficult to tell what this bundle of rights includes without
considering specific contexts including social, cultural, political, legal, and
constitutional variables. However, examples may shed some light in
understanding the positive right to protest. There is no doubt freedom of
expression imposes negative duties. States have the duty to neither censor nor
impede dissemination of speech. As Barendt explains, this is largely a
consequence of the equal political agency each of us is embedded with,97 an
equal agency that results in prohibitions against viewpoint discrimination.
“[A]ll persons within public discourse,” Post argues, “should be equally free to
95
MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM COURTS 167-8 (1999).
Id. at 167.
97 BARENDT, FREEDOM OF SPEECH, supra note 65, at 20.
96
137
say or not to say what they choose.”98 If governments were permitted to
restrain protests on the basis of the content of their claims, it would amount to
having States modeling public discourse at will.99 Were governments allowed to
authorize certain demonstrations while prohibiting others, the moral agency of
some groups would be seriously diminished.100
Prohibition of censorship and viewpoint discrimination proves crucial for
protests. Protests, in fact, are defined by their dissenting nature: they challenge
legal and cultural understandings, on the one hand, but also conventional
means of participation, on the other. Because we are dealing with a positive,
rather than a natural, right, regulations are unavoidable.101 Here is where
governments find spaces to assess what protesters will be (substantively)
mobilizing for. Indeed most governments, typically local governments, have
issued regulations (i.e. ordinances) for public meetings that demand protesters
submit notifications in advance before administrative authorities.
However, States are not free to regulate protests. Freedom of expression
regulations are primarily assessed on the basis of whether they leave
alternative channels of participation open. This is a reason why a total ban of
98
POST, DEMOCRACY, EXPERTISE, ACADEMIC FREEDOM, supra note 56, at 22.
The international human rights law is helpful in this regard. The American Convention on
Human Rights states in its Article 13.2 that freedom of thought and expression “shall not be
subject to prior censorship.” The American Convention on Human Rights, Nov. 22, 1969,
reprinted in COLUMBIA UNIVERSITY - CENTER FOR THE STUDY OF HUMAN RIGHTS, 25+ HUMAN RIGHTS
DOCUMENTS 130, 133 (2005). Although the European Convention does not have a similar
prohibition, the European Court of Human Rights case-law has maintained that prior restraints
are subject to a more stringent assessment. BARENDT, FREEDOM OF SPEECH, supra note 65, at 117.
100 As Post puts it, those prevented from shaping public discourse “will not experience
participation in public discourse as a means of making government responsive to their own
personal views.” POST, DEMOCRACY, EXPERTISE, ACADEMIC FREEDOM, supra note 56, at 21.
101 This should not lead us to overlook how these regulations have, or could have, rendered the
right to protests symbolic performances, rather than rendering them in a substantive way to
secure governments’ responsiveness. Tabatha Abu El-Haj, The Neglected Right of Assembly, 56
UCLA L. REV. 543, 587-8 (2009).
99
138
protests is to be considered unconstitutional.102 Other regulations, provided
they are not total bans, usually receive a strict review as well. Whereas in the
United States free speech regulations are constitutionally acceptable as long as
they are narrowly tailored,103 in Canada regulations designed with the purpose
of
restricting
expressions
“will
be
found
to
violate
section
2(b)
‘automatically’.”104 In the international human rights law the standard—which
is also a substantive—asks whether regulations are proportional.105
102
BARENDT, FREEDOM OF SPEECH, supra note 65, at 83. See also, City of Ladue et al. v. Gilleo, 512
U.S. 43, 55 (1994) (“Although prohibitions foreclosing entire media may be completely free of
content or viewpoint discrimination, the danger they pose to the freedom of speech is readily
apparent—by eliminating a common means of speaking, such measures can suppress too much
speech.”). It is the people’s decision to express themselves by resorting to the streets. See, Kent
Greenawalt, Free Speech in the United States and Canada, 55 LAW AND CONTEMPORARY PROBLEMS 5,
30 (1992).
103 Clark v. Community for Creative Nonviolence, 468 U.S. 288 (1984); Frisby v. Schultz, 487 U.S.
474 (1988). According to the Supreme Court of the United States, regulations are constitutional
only if they (i) do not target content, (ii) are narrowly tailored, and (iii) are to serve a
compelling State interest. In Clark, for instance, the Court upheld regulations forbidding
camping activities outside the designated areas in Lafayatte Park and the Mall, no matter if they
were intended to serve as protests. In reaching its conclusion the Court reasoned
The regulation is neutral with regard to the message presented, and leaves open ample
alternative methods of communicating the intended message concerning the plight of
the homeless (Clark v. Community for Creative Nonviolence, 468 U.S. at 288).
In Frisby, the Supreme Court of the United States upheld an ordinance making unlawful “for any
person to engage in picketing before or about the residence or dwelling of any individual.” The
Court reasoned in the following manner:
The ordinance leaves open ample alternative channels of communication … Viewed in
the light of the narrowing construction, the ordinance allows protesters to enter
residential neighborhoods, either alone or marching in groups; to go door to door to
proselytize their views or distribute literature; and to contact residents through the
mails or by telephone, short of harassment. As is evidenced by its text, the ordinance
serves the significant government interest of protecting residential privacy (Frisby, 487
U.S. 474, 475-6).
104 RICHARD MOON, THE CONSTITUTIONAL PROTECTION OF FREEDOM OF EXPRESSION 34-5 (2000). The
Canadian Chart states,
Everyone has the following freedoms: (b) freedom of thought, belief, opinion and
expression, including freedom of the press and other media of communication.”
Can Const (Constitution Act, 1982) §2(b). Section 1 of the Chart allows the imposition of
reasonable limits on rights and freedoms only if they are (i) prescribed by law and (ii) can be
demonstrably justified in a free and democratic society. No doubt this is also a substantive
standard that, under Canadian case-law, has taken courts to assess whether (i) “the restriction
advances a substantial purpose,” (ii) that purpose is advanced rationally, (iii) it is
proportionate, and (iv) it “impairs the freedom no more than is necessary” (MOON, at 35). The
standard of assessment was established in Oakes (R. v. Oakes, [1986] 1 S.C.R. 103), a standard
that, as I shall show below, has had significance in determining the constitutional luck of some
139
States may engage in viewpoint discrimination when regulating protests.
Although rare, viewpoint discrimination could occur. In 1972, the Supreme
Court of the United States decided a case involving a Chicago city ordinance.
The ordinance prohibited all picketing activities within 150 feet of a school,
unless it was “peaceful picketing of any school involved in a labor dispute.”106
The Court found the ordinance unconstitutional on the grounds of the Equal
Protection clause—“here intertwined with First Amendment interests.”107
The central problem with Chicago's ordinance is that it describes
permissible picketing in terms of its subject matter. Peaceful picketing
on the subject of a school's labor-management dispute is permitted, but
all other peaceful picketing is prohibited. The operative distinction is the
message on a picket sign. But, above all else, the First Amendment
means that government has no power to restrict expression because of
its message, its ideas, its subject matter, or its content.108
The same criterion should be applied when administrative authorities are
conferred unfettered discretion to restrict public demonstrations, for “wide
Canadian occupiers. I follow the description available in Leon E. Trakman, R. v. Oakes 19861997: Back to the Drawing Board, 36 OSGOODE HALL LAW JOURNAL 83, 90-108 (1998). Finally, it
should be noted that in cases involving freedom of expression the Canadian Supreme Court has
also resorted to assessing regulations in light of their overbroadness, such as in RJR-Macdonald
(RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 SCR 199). There the Supreme Court
reasoned that,
As the second step in the proportionality analysis, the government must show that the
measures at issue impair the right of free expression as little as reasonably possible in
order to achieve the legislative objective. The impairment must be “minimal”, that is,
the law must be carefully tailored so that rights are impaired no more than necessary.
The tailoring process seldom admits of perfection and the courts must accord some
leeway to the legislator (RJR-Macdonald, at para. 160).
105 OLIVER DE SCHUTTER, INTERNATIONAL HUMAN RIGHTS LAW 313-4 (2011 repr.) (arguing the
condition of proportionality includes assessing the appropriateness of the measure as well as
its necessity).
106 Police Dept. of City of Chicago v. Mosley, 408 U.S. 92 (1972).
107 Id. at 95.
108 Id.
140
discretion would allow officials to engage in viewpoint discrimination.”109 This
could particularly affect demonstrations against governments, whose
administrative officials vested with ample powers are incumbents.110
What about notification procedures? One way in which prior restraint could be
prevented is by understanding—as some standard in the international human
rights law suggests—that these notifications are required only to permit
governments to organize whatever they need to organize (i.e. traffic) but
should not be deemed as preventive authorizations.111 Notification procedures
also are not applicable, for obvious reasons, to spontaneous protests. The
German Constitutional Court, for instance, has held this,112 while the ECtHR has
called States to facilitate, rather than place unbearable burdens, on impromptu
Greenawalt, Free Speech in the United States and Canada, supra note 102, at 30.
In this sense, and related to the notification procedures below, the Rapporteurship noted
that, although notification procedures are not per se against the Convention, administrative
officials granted that ample discretional authority could be questioned. IACHR-Office of the
Special Rapporteur on Freedom of Expression, Annual Report of the Inter-American Commission
on Human Rights 2005, supra note 80, at 142 (“However, the requirement of prior notification
should not become a demand that permission be granted beforehand by an officer with
unlimited discretional authority.”).
111 Human Rights Council, Report of the Special Rapporteur 2012, supra note 48, at para. 28
(considering these notifications per se as not incompatible with human rights obligations, as
long as they are not transformed into forms of permission); see also, IACHR-Office of the Special
Rapporteur on Freedom of Expression, Annual Report of the Inter-American Commission on
Human Rights 2005, supra note 80, at 141-2.
112 Notice the reasonableness with which the Constitutional Court of Germany addressed this
issue in 1985:
According to the substantially prevailing view, the duty to notify at the right time does
not apply to spontaneous demonstrations which form instantaneously from some
cause at that moment.
The fact that a violation of the duty to notify does not automatically lead to a ban or to
the dispersal of an event coincides with this. It is true that any person who as organiser
or leader "conducts" a meeting which has not been notified commits an offence (§ 26
Meetings Act). But the Meetings Act merely provides in § 15 para. 2 that the competent
authority "can" disperse meetings in the open air and processions if they are not
notified.
The case in question was Brokdorf. I have taken this translation from Institute for Transnational
Law, The University of Texas School of Law, Translated Decisions, BVerfGE 69, 315 - Brokdorf
Decision of the First Senate, available at
http://www.utexas.edu/law/academics/centers/transnational/work_new/german/case.php?i
d=656.
109
110
141
protests.113 However, a form of censorship may still occur. Although this will
not happen in advance, it will happen if the authority decides to dissolve a
manifestation that is against its interest/policies.
At any rate, determining when a government hinders the right to protests on
the basis of its content proves certainly difficult. First, it is not always easy to
define what the primary purpose of a governmental regulation is.114 Second, in
protests freedom of expression considerations get merged with the right to
assembly regulations.115 Governments normally claim they are not restricting
specific contents through these regulations, rather furthering permissible
constitutional objectives (i.e. public tranquility). Third, a categorical distinction
between content-based and content-neutral regulations is flawed as “most laws
contain both content-based and content-neutral-elements.”116 Whether as
content-based or as content-neutral regulations, there will be a degree to which
public debate gets distorted.117
These cautions demand a more careful approach, for it is also true that by
resorting to general and content-neutral regulations governments also conceal
113 Case of Bukta and others v. Hungary, HUM. RTS. CASE DIG. 1175 (2006-2007) (“In the Court’s
view, in special circumstances when an immediate response, in the form of a demonstration, to
a political event might be justified, a decision to disband the ensuing, peaceful assembly solely
because of the absence of the requisite prior notice, without any illegal conduct by the
participants, amounts to a disproportionate restriction on freedom of peaceful assembly.”).
114 BARENDT, FREEDOM OF SPEECH, supra note 65, at 83.
115 In fact, some have suggested that cases of protests and demonstrations began to be decided
in light, and seen as an appendix, of freedom of speech—that is, these were cases “resolved
without reference to assembly.” John D. Inazu, The Forgotten Freedom of Assembly, 84 TULANE L.
REV. 565, 610-11 (2010).
116 Wilson R. Huhn, Assessing the constitutionality of laws that are both content-based and
content-neutral: the emerging constitutional calculus, 79 INDIANA L. J. 801, 814 (2004).
117 Id. at 821; Mary M. Cheh, Demonstrations, security zones, and first amendment protection of
special places, 8 D.C. L. REV. 53, 67-70 (2004) (noting that in protests there is a continuum
between forms and substance, which also applies to State regulations).
142
their actual purposes.118 The basis of content-neutral regulations is the
imposition of restrictions or regulations, regardless of the viewpoints being
expressed. However, there are good reasons not to exempt these general
regulations from freedom of expression scrutiny; laws that appear as facially
content- or speech-neutral may become content- or speech-based as applied.119
Many protest regulations are of this kind, namely content-neutral statutes that
were enacted to further permissible and non-speech-related objectives such as
preventing breach of the peace, but that are applied in a content-based
fashion.120 As Volokh notes citing Cantwell v. Connecticut, a 1940 case,
The offense known as breach of the peace embraces a great variety of
conduct destroying or menacing public order and tranquility. It includes
not only violent acts but acts and words likely to produce violence in
others.121
Political equality also becomes relevant here. In fact, facially neutral regulations
should trouble us more when those being affected by them are always (in a
political, but not in a statistical sense) the same.122 General laws, we know, have
118
Chemerinsky, for instance, has argued that the Supreme Court of the United States has
maintained a very vague and ambiguous definition of content-neutrality. He also argued that
the Court has upheld the validity of various clearly content-based regulations, deemed
constitutional only because they have been motivated by content-neutral purposes. Erwin
Chemerinsky, Content neutrality as a central problem of freedom of speech: problems in the
Supreme Court’s application, 74 S. CAL. L. REV. 49, 56-61 (2000). See also, Huhn, Assessing the
constitutionality of laws that are both content-based and content-neutral, supra note 116, at 8156 (arguing that the standard of assessment for free speech regulations has been relaxed as to
permit inquiry into legislative intent to determine a statute’s constitutionality).
119 See, Eugene Volokh, Speech as Conduct: generally applicable laws, illegal courses of conduct,
“situation-altering utterances”, and the uncharted zones, 90 CORNELL L. REV. 1277, 1286-9 (2005).
120 Id. at 1292.
121 Id. n. 69.
122 Owen Fiss, for instance, has argued that when the Supreme Court protected the protests of
the civil rights movement, States also claimed to be simply enforcing public order laws. The
143
uneven impact depending on one’s (political, social, cultural, etc.) side.123
Context might also be of help here. For instance, as noted before, most current
anti-protests bills and regulations have been submitted and passed in very
specific contexts of protests and with very specific consequences, which might
be very telling of the State’s purpose.124 Whereas governments claim these are
content-neutral regulations aimed at protecting (say) public order, political
contexts advise taking two steps back to assess those regulations in their
proper light: their effects on suppressing certain forms of dissenting speech.125
According to professor Greenawalt, “[s]treet demonstrations are a unique and
important form of communication.”126 As I just noted above, the fact that
protests are forms of communication (or of expression) brings important
consequences, for States are not free to regulate them at will. Protests, to
problem, Fiss argues, was that “[o]rder did not just mean order, but order that preserves
segregation.” OWEN M. FISS, THE IRONY OF FREE SPEECH 7 (1996).
123 Kevin F. O’Neill, Disentangling the Law of Public Protest, 45 LOYOLA L. REV. 411, 436-7 (1999)
(showing that upheld content-neutral regulations limited speech of very specific groups); Helen
Fenwick, The Right to Protest, the Human Rights Act and the Margin of Appreciation, THE MODERN
LAW REVIEW 492, 493-4 (1999) (arguing that denial of public forum rights “bears unequally on
different groups” as it is actually a denial of free speech rights for certain minorities).
124 See, Mohamed Abdelaal, Egypt's Public Protest Law 2013: A Boost to Freedom or a Further
Restriction? 11 US-CHINA L. REV. 1114 (2014).
125 Cheh, Demonstrations and special places protection, supra note 117, at 69. I don’t want to add
more, but a caveat is necessary here. The approach I’m here suggesting should take us, and
courts, to consider the effects of content-neutral regulations. Are courts reluctant to do so?
Moon has argued that courts in Canada have been reluctant to strike down legislation that,
although not aimed at suppressing speech, ends up limiting expression, unless—Moon
continues—challengers are able to show “that the restricted expression advances the values
that underlie freedom of expression … the realization of truth, participation in social and
political decision making, and diversity in the forms of individual self-fulfillment and human
flourishing.” MOON, THE CONSTITUTIONAL PROTECTION OF FREEDOM OF EXPRESSION, supra note 104, at
34-5. The same is true in the United States where governments are given ample room to
present the intentions of their regulations—which takes precedence over expressive effects.
Huhn, Assessing the constitutionality of laws that are both content-based and content-neutral,
supra note 116, at 817-9 (explaining the intent test). Recently the United States Supreme Court
ratified the broad scope authorities have in trumping judicial assessment. McCullen v. Coakley,
573 U.S. ___ (2014) (“Second, even if a facially neutral law disproportionately affects speech on
certain topics, it remains content neutral so long as it is “‘justified without reference to the
content of the regulated speech’.”).
126 Greenawalt, Free Speech in the United States and Canada, supra note 102, at 31.
144
continue with Greenawalt, “cannot be closed off completely, and regulation that
sharply limits them should be carefully reviewed.”127 Freedom of expression,
and through it the right to protest, relates to States in the friend-foe relation I
mentioned at the beginning, with all the pros and cons this dialectic relation
brings with it. As Fiss wrote,
The state, like any other institution, can act either as a friend or enemy
of speech and, without falling back to the libertarian presumption, we
must learn to recognize when it is acting in one capacity rather than
another.128
Noticing the political purposes freedom of expression serves, as I have argued
in this section, could helps us to determine when the State it is acting in which
capacity and, consequently, demand tighter scrutiny of its regulations.
III. Freedom of assembly
Owen Fiss noted some time ago that large chains of newspapers and television
dominate the current public sphere.129 The market, he argued, constrains what
matters occupy the front page of the public sphere in two main ways: by
privileging “certain select groups, by making programs, journals, and
newspapers especially responsive to their needs and desires,”130 on the one
hand, and by privately determining what news they will air (or print). These
127
Id.
Owen M. Fiss, Why the State?, 100 HARVARD L. REV. 781, 787 (1987).
129 Id.
130 Id. at 788.
128
145
latter decisions, Fiss regretted, “have a great deal to do with profitability or
allocative efficiency … but little to do with the democratic needs of the
electorate.”131
This is not a matter of market failure, but of market reach—Fiss insisted.132
This is why the State is asked to create spaces that supplement, rather than
replace, the market. Nevertheless, this is also why social groups strive to
overcome the limitations they face due to the current configuration of the
public sphere. Assembling themselves is a form of effectively influencing politics
where traditional channels appear to be closed.133 Engaging in concerted
activity is actually both a matter of mutual aid and protection,134 given the
realization that certain objectives are most effectively achieved (or the
achievement at least appears feasible) through joint action.135 The very source
of the body politic is, as Rousseau put it: “This sum of forces [that] can only
arise only from the cooperation of many.”136 This sum of forces is also the
condition for the exercise of other rights, such a freedom of speech: “If the
people could not assemble, many of their rights would be rendered
nugatory.”137
Id.
Id.
133 See Lynd, Communal Rights, supra note 92, at 1424.
134 Id. at 1423.
135 Id. at 1424.
136 Jean-Jacques Rousseau, Of the Social Contract, in THE SOCIAL CONTRACT AND OTHER LATER
POLITICAL WRITINGS 39, 49 (Victor Gourevitch ed. & trans., Cambridge: Cambridge University
Press, 2003 repr.) (1762).
137 James M. Jarrett & Vernon A. Mund, The Right to Assembly, 9 N.Y.U. L. QUARTERLY REV. 1, 4-5
(1931). At any rate, it is worth emphasizing that the values normally attributed to assemblies
and associations are not solely instrumental. Associations, however transitory (assemblies),
have value in themselves as they promote “camaraderie, dialogue, deliberation, negotiation,
competition, creativity, and the kinds of self-expression and self-sacrifice that are only possible
in association with others.” Amy Gutman, Freedom of Association: An Introductory Essay, in
131
132
146
Certainly, once a body politic has been erected people may come together with
different purposes—for example, to overthrow the regime itself. As I have been
stressing here, I am concerned with forms of political participation and
contestation that presuppose the regime remaining in place. Here, freedom of
assembly occupies a central place. Not surprisingly, John Rawls listed this
freedom as one of the basic liberties citizens enjoy. Freedom of assembly,
among other liberties—Rawls also mentions freedom of expression—, is key to
“secure the free and informed application of the principles of justice.”138 In fact,
in A Theory of Justice Rawls had also mentioned freedom of assembly as not
only required by the first principle of justice (an equal right to the most
extensive scheme of basic rights and liberties), but also to secure a public
forum free and open to all citizens where they can assess and “add alternative
proposals to the agenda for political discussion.”139
On the currency of the republican tradition, at least as Pettit has expounded it,
assembly also ranks as a prominent place. Numbers (meaning citizens
contesting State action in concerted action) are in fact a matter which is
necessary to secure liberty. Indeed, the only way in which a government is
conducted in republican terms is when that government is controlled by a
FREEDOM OF ASSOCIATION 3, 3-4 (Amy Gutman ed. 1998); Inazu, The Forgotten Freedom of
Assembly, supra note 115, 567-70 (2010) (arguing the fact of gathering is a form of expression
related to, but certainly different from, freedom of speech).
138 JOHN RAWLS, POLITICAL LIBERALISM 334 (1996).
139 JOHN RAWLS, A THEORY OF JUSTICE 197-8 (1999 rev. ed.). In obvious connection with the
references to Owen Fiss with which I open this section, Rawls also added,
The liberties protected by the principle of participation lose much of their value
whenever those who have greater private means are permitted to use their advantages
to control the course of public debate (at 198).
147
system equally accessible to all.140 As freedom in republican terms is more
demanding than its liberal counterpart, control of government here is not to be
based solely on the will of the State, but—as Pettit explains—on unconditioned
grounds.141 How is that correlation between popular influence and government
to be maintained beyond simple contingency? One key component to keep that
influence binding, and thus not dependent on the discretionary will of the
government, is a resistive community:
a community in which, as a matter of fact and/or common belief, people
are disposed to resist government, should it ignore popular influence,
and government is disposed to avoid triggering resistance.142
Numbers are determining to this purpose. “It is only in the presence of
concerted, sustained oversight of government activity,” Pettit argues, that
governments will be brought, rather than simply expected, to be responsive to
popular inputs.143
A. Freedom of assembly as an independent right
Freedom of assembly is the second right that concurs in configuring the right to
protest. It is under the understanding sketched above that concerted actions
become politically significant and, to some, the only available channel. It is
under this political understanding that I read this right. As a right, it is also
better understood as encompassing a bundle of legal positions including both
negative and positive obligations.
140
PHILIP PETTIT, ON THE PEOPLE’S TERMS: A REPUBLICAN THEORY AND MODEL OF DEMOCRACY 208-9
(2012).
141 Id. at 218.
142 Id. at 219.
143 Id. at 226.
148
One way to start understanding the bundle of rights freedom of assembly
encompasses is by distinguishing it from freedom of expression.144 Is freedom
of assembly independent of freedom of speech or is it always speech-related?145
In A. V. Dicey’s historical account of the common law of manifestations, he
denied there was such a thing as an independent right to assembly. In his
words,
The right of assembly is nothing more than the result of the view taken
by the Courts as to individual liberty of person and individual liberty of
speech.146
Schauer, for another, argued demonstrations, parades and picketing activities
were important not much because of their communicative value,147 but because
of their effectiveness as means to call others’ attention.148
Nowadays, a conceptual distinction seems more appropriate—although, as I’m
claiming here, both rights concur in configuring the right to protest. Barendt,
And also by distinguishing freedom of assembly from freedom of association. See, Inazu, The
Forgotten Freedom of Assembly, supra note 115, at 567 (“something is lost when assembly is
dichotomously construed as either a moment of expression (when it is viewed as speech) or an
expressionless group (when it is viewed as association).”).
145 Notice that this is a related, although different, discussion as to whether the concurrence of
different liberties strengthens the right to protest (as discussed supra note 53).
146 Cited in Jarrett & Mund, The Right to Assembly, supra note 137, at 9. But see, Helen Fenwick &
Gavin Phillipson, Public Protest. The Human Rights Act and Judicial Responses to Political
Expression, 2000 PUBLIC LAW 627 (2000) (arguing that since the ratification of the Human
Rights Act in 1998 the right to protest transformed from being conceived as an unprotected
liberty to a positive right).
147 In fact, he was very dismissive as to the communicative character of protests. Arguing
protests are more emotional than intellectual, he contended there would be little, if any,
communicative loss if we were to prohibit protests since “statements of the positions involved
are available in books, newspapers, magazines and other less obstructive communicative
formats.” These channels, he insisted, are “more conductive to a rational argument and
deliberation …”. FREDERICK SCHAUER, FREE SPEECH: A PHILOSOPHICAL ENQUIRY 201-2 (1982).
148 Id., at 202. The Constitutional Court of Spain embraced this approach when stating that the
freedom of assembly (“derecho de reunión”) entails “a collective manifestation of free speech
by means of an instrumental and transitory association of persons put in service of the
exchange and exposition of ideas.” Judgment of May 8, 1995, Constitutional Court, Second
Chamber, STC 66/1995, para. II.3 (my translation).
144
149
for instance, has persuasively argued the advantages of considering the right to
assembly as an independent right. In fact, as he notes, under the protection of
the right to assembly there is no need to entertain the discussion whether there
is speech involved or not.149 Accordingly, not every protest has a
communicative purpose.150 What Barendt argues is that freedom of assembly
has an “organizational dimension, enabling the convenors of meetings and
street processions to choose, subject to limits and conditions, the time and
place of their demonstration.”151 It is this organizational character what has
permitted freedom of assembly, different from freedom of expression, to be
more easily conciliated with positive duties.152 Finally, this conceptual
distinction is needed to make sense of the fact that many Western constitutions
explicitly recognize freedom of assembly as a right different from, although
highly related to, freedom of speech.153 However, this conceptual distinction
149
BARENDT, FREEDOM OF SPEECH, supra note 65, at 271. More recently, Judith Butler has made a
similar claim. JUDITH BUTLER, NOTES TOWARD A PERFORMATIVE THEORY OF ASSEMBLY 8 (2015) (“If we
consider why freedom of assembly is separate from freedom of expression, it is precisely
because the power that people have to gather together is itself an important political
prerogative, quite distinct from the right to sat whatever they have to say once people have
gathered.”).
150 I cannot but think of the case of football fans in Latin America and Europe who gather some
time before matches in public spaces surrounding stadiums, such as squares and parks. There
they normally chant to support their teams, and authorities may regulate their activities in
order to control the orderly entrance to the stadium. While these activities have an expressive
purpose—to show fans’ commitment to their team—, their regulation would hardly be a matter
of freedom of speech, but of freedom of assembly. In other words, a fans’ case against these
regulations would not be made stronger if they were to show that chanting in favor of their
team is a matter of freedom of expression. However, their case would be strengthened by
showing they have peacefully gathered in public spaces where reunions are allowed or if chants
themselves are politically loaded—a fact we should not dismiss out of hand considering the
way in which many political actors have related to football teams.
151 BARENDT, FREEDOM OF SPEECH, supra note 65, at 272.
152 Id. at 271-2.
153 In fact, it should be noted that many State constitutions in the United States subordinate the
freedom of assembly to specific communicative purposes: “To consult the common good; to
instruct their representatives; (and, or) to apply to the state governments.” Jarrett & Mund, The
Right to Assembly, supra note 137, at 17.
150
should not obscure the relevant political purposes that freedom of assembly
serves alongside, and shares with—as noted above—, freedom of expression.154
B. TPM regulations and public order
The most obvious negative duty the State is held to is that of not obstructing
freedom of assembly. As noted before, notification procedures are likely to be
used by States as instances to discriminate or censor because of viewpoints to
be aired. This is why notification procedures are not permissions, but instances
of communication flow between demonstrators and the State. At any rate,
notification procedures are part of what the literature has called regulations of
the time, place and manner of protests.155 I have already said that these TPM
regulations should not be subtracted from freedom of expression scrutiny;
under what appears to be neutral TPM regulations the purpose of suppressing
certain dissident voices might be hidden. I briefly consider here TPM
regulations in light of freedom of assembly alone.
TPM regulations are regularly accepted as they permit the State to balance its
interests (i.e. preserving public order and traffic flow) with those of the
protesters. But is it actually a balance? There has been an interesting debate as
to the State’s role in implementing these regulations. Some commentators, for
instance, highlight the spaces of negotiation that TPM regulations open
154
BARENDT, FREEDOM OF SPEECH, supra note 65, at 272 (“the self-fulfilment of those participating
in the meeting or other form of protest, and the dissemination of ideas and opinions essential to
the working of an active democracy. Public meetings and demonstrations enable those ideas to
be communicated more effectively.”).
155 BARENDT, FREEDOM OF SPEECH, supra note 65, at 80.
151
between State authorities (mostly the police) and protesters,156 which some
have deemed an actual institutionalization of protests.157
Others, however, warn these regulations offer spaces of negotiation that
include unequal bargaining power.158 They contend that these instances make
protesters focus on procedural, rather than substantive matters,159 that this
model has proven to offer ample discretion to authorities,160 and that these
negotiations have not changed the face of a State that imposes these limits in a
top-down fashion.161 Moreover, it has been argued that this negotiated
management model has been withdrawn altogether and currently replaced by a
‘command-and-control’ model.162 In the end, protests have been transformed in
forced rituals rather than meaningful political instances,163 free speech rights
156
John D. McCarthy & Clarck McPhail, The Institutionalization of Protest in the United States, in
THE SOCIAL MOVEMENTS SOCIETY: CONTENTIOUS POLITICS FOR A NEW CENTURY 83, 83-4 (David S. Meyer
& Sidney Tarrow eds., 1998) (arguing that this public order management system, where citizen
protests are a normal part of the political process, has improved practices when compared with
protest policing in the 1960s).
157 McCarthy & McPhail, The Institutionalization of Protest in the United States, supra note 80.
158 Donatella Della Porta & Oliver Fillieule, Policing Social Protest, in THE BLACKWELL COMPANION
TO SOCIAL MOVEMENTS, supra note 59, at 219-20 (arguing this negotiated exchange between
protesters and the police is based on unequal bargaining power).
159 Trevor C. W. Farrow, Negotiation, Mediation, Globalization Protests and Police: Right
Processes; Wrong System, Issues, Parties and Time, 28 QUEEN’S L. J. 665 (2002-2003) (arguing
TPM processes put protesters in the difficult position of compromising their claims by focusing
on procedural matters).
160 Patrick Rafail, Asymmetry in Protest control? Comparing protest policing patters in Montreal,
Toronto, and Vancouver 1998-2004, 15 MOBILIZATION 489 (2010) (contending whether
negotiated management models are always the default rule and highlighting differences across
cities).
161 Citizens, Abu El-Haj has argued, are thus “rendered supplicant” of permissions to assemble.
Tabatha Abu El-Haj, The Neglected Right to Assembly, supra note 101 at 546-7 (“we [have]
replaced the notion that the state can only interfere with gatherings that actually disturb the
peace or create a public nuisance with a legal regime in which the state regulates all public
assemblies, including those that are anticipated to be both peaceful and not inconvenient, in
advance through permits.”).
162 PETER DAUVERGNE & GENEVIEVE LEBARON, PROTEST INC. THE CORPORATIZATION OF ACTIVISM 55-65
(2014) (arguing this model is characterized by ample and vague powers granted to the police
and its militarization, all this against a background and culture of impunity).
163 Abu El-Haj, The Neglected Right to Assembly, supra note 101, at 547.
152
have been turned into ‘permitted speech,’164 and many protesters have been
taken, either consciously or unconsciously, to commune with the power (either
public or private) of those they claim to fight against.165
In any case, States are not free to restrict public meetings at will. These
restrictions will, generally, be upheld as long as they are “no wider than
necessary to prevent litter, noise, congestion, or other nuisance.”166 In the
United States, TPM restrictions are subjected to a three-part test where courts
control (a) whether regulations are content-neutral, (b) whether regulations
are narrowly tailored, and (c) whether these regulations leave “sufficient
alternative channels of communication.”167 This test precludes total, although
content-neutral, prohibitions.168 Similar criteria is followed in Canada—where
public protests can be restricted only if (a) regulations are content-neutral and
(b) their limits are “narrowly drawn”169—and in the international human rights
law.170 Of course, no matter how strict we are in constraining States’ regulatory
164
Don Mitchell & Lynn A. Staeheli, Permitting Protest: Parsing the Fine Geography of Dissent in
America, 29 INTERNATIONAL JOURNAL OF URBAN AND REGIONAL RESEARCH 796, 800-1 (2005) (arguing
the system of regulations has become so accepted that the general rule has become limiting).
165 DAUVERGNE & LEBARON, PROTEST INC., supra note 162, at 1-28.
166 BARENDT, FREEDOM OF SPEECH, supra note 65, at 80.
167 O’Neill, Disentangling the Law of Public Protest, supra note 123, at 435.
168 See, for instance, City of Ladue et al. v. Gilleo, 512 U.S. 43, 55 (1994) (“Although prohibitions
foreclosing entire media may be completely free of content or viewpoint discrimination, the
danger they pose to the freedom of speech is readily apparent-by eliminating a common means
of speaking, such measures can suppress too much speech”).
169 MOON, THE CONSTITUTIONAL PROTECTION OF FREEDOM OF EXPRESSION, supra note 104, at 148.
170 IACHR-Office of the Special Rapporteur on Freedom of Expression, Annual Report of the
Inter-American Commission on Human Rights 2005, supra note 80, at 141 (“The Rapporteurship
considers that for said limitations to respect the standards for the protection of freedom of
expression and freedom of assembly, they must not depend on the content of what is to be
expressed in the demonstration, they must serve a public interest, and they must leave open
alternative channels of communication.”).
153
powers, the fact is that today these regulations seem to be the rule rather than
the exception.171
Let me close references to TPM restrictions by mentioning two related,
although open, debates: the resort to public order, on the one hand, and the
displacement of dissenting voices, on the other. Public order is one of those
vague and open-ended concepts authorities regularly resort to for restricting
protests.172 Historically, the legal scope of protests has been tightly linked to
their impact on bystanders. In fact, in the English common law of assemblies,
public meetings were illegal if they meant to terrorize the people or had that
consequence.173 As it has been noted, a protest might become unlawful because
of its purpose, but also because of its manner.174
These limits, however, have proven difficult to determine precisely because of
their vagueness and generality. Furthermore, it is not clear at all what interests
these restrictions protect, let alone whether there are any rights involved on
the side of the government.175 The absence of rights, in any case, is not
conclusive so as to deny the State regulatory powers. States may actually show
171
Abu El-Haj, The Neglected Right to Assembly, supra note 101, at 579 (“we have replaced the
notion that the state can only interfere with gatherings when they disturb the peace, with a
legal regime in which the state is permitted to regulate in advance …”.).
172 It is, in fact, one of the criteria upon which freedom of assembly can be restricted under the
American Convention of Human Rights (Article 13.2.b). The European Convention on Human
Rights uses similar terms. It states “[n]o restrictions shall be placed on the exercise” of freedom
of assembly, other than those necessary “for the prevention of disorder or crime … or the
protection of the rights and freedoms of others” (Article 11.2).
173 Jarrett & Mund, The Right to Assembly, supra note 137, at 6.
174 Id. at 19-21 (explaining, meanwhile noticing the flexibility of, the “tumultuous manner”
standard).
175 BARENDT, FREEDOM OF SPEECH, supra note 65, at 290-1.
154
there are sensible public interests in preserving order,176 probably the very
same social planning interests the law itself is aimed at serving.177
The problem is, therefore, with the different conceptions of public order at
hand. One canonical approach suggests that public order entails preserving
order,178 “a matter of keeping the peace, avoiding brawls and so on.”179 That
extremely ample approach makes unlawful any assembly concerted with the
common intent of “produc[ing] danger to the tranquility and peace of the
neighborhood,” as a New Jersey court held in 1928.180 Moreover, in the recent
European context the definition of public order has also been linked to the
security and free movement of goods.181 Nevertheless, public tranquility, to put
it broadly (as broadly as the term has been used), shows only one side of the
coin, for public order also has an egalitarian component. It might “comprise
society’s interest in maintaining among us a proper sense of one another’s
social or legal status.”182 This is to secure the standing of citizens as full
176
Id. at 291.
SCOTT J. SHAPIRO, LEGALITY 170-73 (2011) (arguing legal systems are “institutions of social
planning and their fundamental aim is to compensate for the deficiencies of alternative forms of
planning” in the context of highly pluralized communities).
178 BARENDT, FREEDOM OF SPEECH, supra note 65, at 291.
179 JEREMY WALDRON, THE HARM IN HATE SPEECH 46 (2012).
180 Jarrett & Mund, The Right to Assembly, supra note 137, at 22.
181 In Schmidberger v. Austria—the case I am thinking about here—the European Court of
Justice (‘ECJ’) did not hold that protests are to be restricted in light of the fundamental freedom
of movement of goods. In fact, the ECJ reasoned that sometimes freedom of assembly outweighs
other considerations. Matthew Humphreys, Free movement and roadblocks: the right to protest
in the single market, 6 ENVTL. L. REV. 190, 191-3 (2004). However, the freedom of movement of
goods was certainly a standard with which protests (and other rights) are to be balanced,
although in a more relaxed fashion. See, Andrea Biondi, Free Trade, a Mountain Road and the
Right to Protests: European Economic Freedoms and Fundamental Individual Rights, 1 EUROPEAN
HUMAN RIGHTS L. REV. 51, 58-9 (2004) (noticing that, according to the ECJ in Schmidberger, the
fundamental rights defense is to be scrutinized in light of whether they are tolerable
interferences with “obligations imposed by Community Law, even under a fundamental
freedom guaranteed by the Treaty such as the free movement of goods.”).
182 WALDRON, THE HARM IN HATE SPEECH, supra note 179, at 46.
177
155
members of a given society, that is, the status of citizenship.183 This egalitarian
side of public order, a face seldom emphasized, leads us to consider the
attribution and protection of rights, particularly the protection of rights that
allow the people to become meaningful citizens (participatory rights), not the
security that one’s daily life will be uneventful.184
A similar reading can be found in the international human rights law where,
aware of the open-ended character of public order, a more structural
conception has been preferred. This structural conception of public order
stresses the institutional conditions needed to secure the enjoyment of rights,
being the respect for rights precisely one of these conditions.185 Thus, the
Id.
In fact, Waldron argues this version of public order aspires to assure “members of a
vulnerable group can live their lives gracefully and in a dignified manner, in routine
interactions with other” WALDRON, THE HARM IN HATE SPEECH, supra note 179, at 92. I have
already emphasized above the importance of reading freedoms of expression and of assembly
in an egalitarian manner, that is, paying attention to how the regulation of rights affects those
who are worst-off. Stressing the egalitarian aspect of public order follows such an approach.
The Rapporteurship has also highlighted the crucial role protests play in consolidating
democracies. IACHR-Office of the Special Rapporteur on Freedom of Expression, Annual Report
of the Inter-American Commission on Human Rights 2005, supra note 80, at 140 (“the
Rapporteurship emphasizes that societal participation through public demonstrations is
important for the consolidation of democratic life of societies. In general, as an exercise of
freedom of expression and freedom of assembly, it is of crucial social interest …”.). More
recently, the United Nations Special Rapporteur on the rights to freedom of peaceful assembly
and of association has emphasized restrictions on freedom of assembly are more burdensome
to certain marginalized groups. The effect of freedom of assembly regulations, as well as
hostility from other individuals, has the consequence of “reinforcing marginalization” and
political participation in public matters. Human Rights Council, Report of the Special Rapporteur
on the rights to freedom of peaceful assembly and of association (Maina Kiai), A/HRC/26/29.
April 14, 2014, at paras. 7-15.
185 The objective of these clauses is to allow States not to resort to legitimate interests
recognized in international conventions with the aim of restricting rights and liberties
recognized there as well. See, Article 29.a of the American Convention on Human Rights;
No provision of this Convention shall be interpreted as:
a. permitting any State Party, group, or person to suppress the enjoyment or exercise of
the rights and freedoms recognized in this Convention or to restrict them to a greater
extent than is provided for herein.
And Article 17 of the European Convention on Human Rights:
Nothing in this Convention may be interpreted as implying for any State, group or
person any right to engage in any activity or perform any act aimed at the destruction
183
184
156
Rapporteurship noted in its 2009 Annual Report that public order cannot be
invoked to suppress rights recognized in the Convention.186 In line with the
structural notion here emphasized, it defined public order as “the conditions
that assure the normal and harmonious functioning of institutions based on a
coherent system of values and principles.”187 Pointing to the maintenance of
democratic institutions,188 the Rapporteurship emphasized that the widest
circulation of ideas was indeed required by public order.189 Exactly the same
emphasis on the structural understanding of public order has been held in the
international system of human rights.190
There has been some debate as to the meaning of public order in the European
context, where public order has been conceptualized in both a broad and a
of any of the rights and freedoms set forth herein or at their limitation to a greater
extent than is provided for in the Convention.
186 IACHR-Office of the Special Rapporteur on Freedom of Expression, Annual Report of the
Inter-American Commission on Human Rights 2009, OEA/Ser.L/V/II. Doc.51. December 30,
2009, at 251. See also, the Annual Report of the Inter-American Commission on Human Rights
2005, supra note 80, at 140-41 (“the purpose of the regulation of the right to assembly cannot
be that of establishing grounds for prohibiting meetings or demonstrations.”).
187 Id.
188 Id. (“any impairment of public order that is invoked as a justification to limit freedom of
expression must be based on real and objectively verifiable causes that present the certain and
credible threat of a potentially serious disturbance of the basic conditions for the functioning of
democratic institutions.”).
189 Id. Some have suggested that this means the IACtHR has understood the terms of the
Convention to be sort of “an American democratic public order,” which explains why public
order can only be interpreted with reference to the American Convention. ANNA-LENA SVENSSONMCCARTHY, THE INTERNATIONAL LAW OF HUMAN RIGHTS AND STATES OF EXCEPTION: WITH SPECIAL
REFERENCE TO THE TRAVAUX PRÉPARATOIRES AND CASE-LAW OF THE INTERNATIONAL MONITORING ORGANS
170-1 (1998).
190 De Schutter cites the ‘Siracusa Principles on the Limitation and Derogation of Provisions in
the International Covenant on Civil and Political Rights,’ noticing that
The expression ‘public order (ordre public)’ as used in the Covenant may be defined as
the sum of rules which ensure the functioning of society or the set of fundamental
principles on which society is founded. Respect for human rights is part of public order
(ordre public).
DE SCHUTTER, INTERNATIONAL HUMAN RIGHTS LAW, supra note 105, at 306.
157
narrow sense.191 The broad sense is similar to the structural conception here
identified: “‘the basic structure of a state governed by the rule of law, or in
other words, a proper democratic republic’.”192 In a narrow sense, however,
public order amounts to public policy, “that is, normal and undisturbed life in
the public sphere.”193 While de Lange recognizes that it is this narrow sense
what provisions of the European Convention on Human Rights accept when
permitting limits on rights (the European Convention talks of public safety and
the prevention of disorder,),194 it is also true that fundamental rights normally
trump these public policy considerations.195 This is so because the interests
that States regularly resort to in order to restrict rights might be very
important, but “they would not include the basic structure of the republic, nor
necessarily the fundamental rights of the citizen.”196 Furthermore, the ECtHR
has also developed a more demanding standard whenever political speech is
involved, therefore reducing the margin of appreciation granted to States for
domestic regulations.197 Thus, in Schmidberger, as already noted, the ECJ
191 Here I follow Roel de Lange, The European Public Order, Constitutional Principles and
Fundamental Rights, 1 ERASMUS L. REV. 3, 7-9 (2007).
192 Id. at 7-8.
193 Id. at 8.
194 Id. at 9.
195 Id. at 8. See also, SVENSSON-MCCARTHY, THE INTERNATIONAL LAW OF HUMAN RIGHTS, supra note
189, at 188 (“the international law of human rights provides a positive legal framework which
strictly conditions the meaning of these notions [national security and public order] so as
always to make their interpretation and application conducive to the effective protection of the
rights concerned.”).
196 Id.
197 This is particularly the case of public meetings, whose protection has been routinely merged
with that of freedom of speech. Every time this is the case—and as I said before relaying on the
amplitude of means freedom of expression provides citizens with and public opinion openness,
this is regularly the case—the Court sees that the essential foundations of democracy are
involved. In any case, as van Dijk et al. recognize, freedom of peaceful assembly has not played
such a relevant role in the jurisprudence of the Court. See, PIETER VAN DIJK ET AL., THEORY AND
PRACTICE OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS 818-9, 821-3 (2006). I would like to
thank Pablo Contreras for the discussion and reference on this issue.
158
reasoned the right to protest trumped the free movement of goods, for an
isolated incident in question did not give rise to a general climate of
insecurity.198
There is no doubt that the structural understanding of the public order is more
congenial with the right to protest, for public meetings will always involve
some level of public nuisance that cannot be used as an excuse to sanction
dissent.199 This was what the German Constitutional Court held in Brokdorf:
a limitation of this freedom will definitely not be justified by just any
interest; inconveniences which inevitably arise from the large scale on
which the basic right is exercised, and cannot be avoided without
disadvantages for the purpose of the event, will generally have to be
born by third parties. It will be just as inappropriate to consider banning
of meetings on the basis of mere technical traffic grounds, since
juxtaposition of the use of the highway by demonstrators and moving
traffic is as a rule attainable by conditions.200
It should be noted that in the context of the ECtHR it has also been held that
protests will inevitably cause some disruption—inherit in any demonstration—
198
Eugen Schmidberger, Internationale Transporte und Planzüge v. Austria (Case C-112/00),
[2003] ECR I-5659, 5722.
199 It is a telling fact that in the preparatory works of the Universal Declaration of Human Rights
and the International Covenants (on Civil and Political Rights and on Economic, Social and
Cultural Rights) narrower terms such as ‘public welfare’ and ‘prevention of disorders’ were
dropped as limits on rights. This does not mean, as the international case law shows, that
considerations of public tranquility cannot be invoked, but it does mean that those
considerations alone do not exhaust the meaning of public order. At any rate, this openness
calls for a balance of different interests in defining the scope of public order, fundamental rights
included—as argued above. See, SVENSSON-MCCARTHY, THE INTERNATIONAL LAW OF HUMAN RIGHTS,
supra note 189, at 149-61.
200 Brokdorf, supra note 112.
159
, which is protected by freedom of assembly.201 This protection has also been
extended to unlawful gatherings.202 How much disruption and disorder will
authorities permit, however, is difficult to tell in advance. Authorities normally
enjoy ample latitude to ‘accommodate’ exercise of (crucial) rights with disorder
and risk of violence,203 but they are not free in determining so.
Or are they? One of the main obstacles to a vigorous freedom of assembly is the
vague nature of statutes granting governmental authorities, particularly the
police, ample powers for policing protests.204 No wonder this is one of the
reasons why authorities have preferred to stick with the erratic-vague-andopen-to-as-many-interpretations-as-you-will
201
notion
of
public
order.205
Ezelin v. France, [1992] EHRR 362.
Case of Akgöl and Göl v. Turkey, nos. 28495/06 and 28516/06, ECHR 2011, para. 41 (“the
Court reiterates that any demonstration in a public place may cause a certain level of disruption
to ordinary life and encounter hostility … it also points out that an unlawful situation does not
justify an infringement of freedom of assembly and that regulations of this nature should not
represent a hidden obstacle to freedom of peaceful assembly as protected by the Convention.”).
However, the ECtHR has done so in the context of protests or assemblies limited in time,
meaning protests that cause momentary, rather than extended, disruption. In Barraco, the
Court, despite recognizing that “all demonstrations in a public place are likely to cause some
disruption,” also noted that in this specific case protesters went “beyond the level of
obstruction inherent in the demonstration itself.” Barraco v. France [2009] E.H.R.L.R. 580, 5812.
203 BARENDT, FREEDOM OF SPEECH, supra note 65, at 291-2.
204 I have noted above (supra note 42) that there is a current trend among governments facing
different degrees of protests (Canada, Chile, Egypt, Greece, Russia, and Spain, to name a few) to
submit bills and pass statutes and different by-laws curtailing the freedom of assembly. They do
this by criminalizing ample and vague conducts which exact limits are hard, if impossible, to
foresee by regular citizens (public order, of course, ranks among authorities’ preferred terms).
Human Rights Council, Report of the Special Rapporteur 2014, supra note 184, at para. 7 (“In
recent years many States have responded to people’s assertions of peaceful dissent by violently
clamping down on peaceful protests and other forms of assembly, unduly restricting the ability
of associations to form and operate, and physically assaulting civil society actors.”). In this
regard, a case decided by the United States Supreme Court in 1965 is exemplary. In Cox, the
Court held a statute of breach of peace was unconstitutionally vague and broad in scope as it
permitted to “sweep[] within its broad scope activities that are constitutionally protected free
speech and assembly.” Cox v. Louisiana (No. 24), 379 U.S. 536, 551-2 (1965).
205 Helen Fenwick, for instance, has shown that in the United Kingdom the breach of peace
doctrine of the common law is so ample and vague that it even fails to distinguish between riots
and protests with freedom of expression significance. Fenwick, The Right to Protest, supra note
123, at 508. See also, Helen Fenwick, Marginalising Human Rights: Breach of the Peace,
“Kettling”, the Human Rights Act and Public Protest, 2009 PUBLIC LAW 737, 737-8 (2009)
202
160
Whereas empirical research has shown the police are keen on reading their
own perceptions as to what public order involves within statues and bylaws,206
the fact that these statutes contemplate mostly criminal sanctions transforms
this into an urgent issue.207 However, while the police give orders, their orders,
as Jarrett and Mund put it back in 1931, are not laws.208
Many decisions and standards show that empty and conjectural references to
disorders that may (but also may not) follow protests are not enough.209 As the
Rapporteurship explained, every time public order is invoked to limit
expressions and assemblies it “must be based on real and objectively verifiable
causes that present the certain and credible threat of a potentially serious
disturbance of the basic conditions for the functioning of democratic
institutions.”210 In this very fashion the ECtHR has reasoned that authorities
(showing the police have preferred to resort to the common law of breach of peace which offers
more discretion to curb and control protests, rather than to the statutes regulating public
meetings—however vague as well).
206 Della Porta & Fillieule, Policing Social Protest, supra note 158, at 222-27.
207 Annual Report of the Inter-American Commission on Human Rights 2009, supra note 186, at
143 (criminalization could have an intimidating effect on this form of participatory expression
among those sectors of society that lack access to other channels of complaint or petition.”);
Human Rights Council, Report of the Special Rapporteur 2014, supra note 184, at para. 60
(“Criminal procedure laws and penal sanctions are used in several States to deter the exercise
of the right to freedom of association. Authorities who are hostile to critical voices resort to
criminal prosecution for defamation or similar offences, thereby discouraging and interfering
with legitimate activities by groups.”). See also, Gargarella, Law and Social Protests, supra note
75 (calling attention on the inconvenience, and justificatory problems in the context of
pervasive inequality, of answering protests with criminal law).
208 Jarrett & Mund, The Right to Assembly, supra note 137, at 26.
209 BARENDT, FREEDOM OF SPEECH, supra note 65, at 294-302.
210 Annual Report of the Inter-American Commission on Human Rights 2009, supra note 186, at
251. The Rapporteurship has also held that protests “cannot be considered as synonymous with
public disorder for the purpose of restricting it per se.” Therefore, “an officer cannot deny a
permit because he or she believes it to be likely that a demonstration will endanger peace,
security, or public order, without taking into consideration whether the danger to peace,
security or public order can be avoided by modifying the original circumstances of the
demonstration (place, time, and so on).” Annual Report of the Inter-American Commission on
Human Rights 2005, supra note 80, at 141-3.
161
need to specify the reasons why an outbreak of violence is likely. Therefore,
empty reference to legal norms is not enough. Indeed, in Ivanov it held that
even assuming that the legitimate aims pursued were public safety and
the prevention of disorder, it can hardly be concluded that the
authorities gave relevant and sufficient reasons justifying the
prohibitions of the rallies, substantiating their finding that there was a
risk to public order, and that the bans were thus necessary in a
democratic society. It should also be noted that in their observations the
Government did not specify any particular reasons to justify the bans,
but merely stated that the authorities had acted in conformity with
national law and that their actions had not been arbitrary.211
Other local jurisdictions have maintained similar criteria. Thus, in Edwards v
South Carolina the Supreme Court of the United States held that the threat of
breach of peace, there defined in a pretty narrow sense,212 has to be real and
imminent213—a standard later to be picked up by the Colombian Constitutional
Court under the wording of a “imminent and serious threat.”214 The
Constitutional Court of Spain has also emphasized the burden on authorities to
211
Case of Ivanov and others v. Bulgaria, no. 46336/99, ECHR 2005, at para. 63. See also, VAN DIJK
ET AL., THEORY AND PRACTICE OF THE EUROPEAN CONVENTION, supra note 197, at 821-2.
212
Edwards v. South Carolina, 372 U.S. 229, 234 (1963) (“In general terms, a breach of the peace
is a violation of public order, a disturbance of the public tranquility, by any act or conduct
inciting to violence …, it includes any violation of any law enacted to preserve peace and good
order. It may consist of an act of violence or an act likely to produce violence.”).
213 Id., at 237-8 (“That is why freedom of speech … is … protected against censorship or
punishment, unless shown likely to produce a clear and present danger of a serious substantive
evil that rises far above public inconvenience, annoyance, or unrest. … There is no room under
our Constitution for a more restrictive view.”).
214 Corte Constitucional [C.C.] [Constitutional Court], julio 14, 1992, Sentencia T-456/92 (slip
op. at a), available at http://www.corteconstitucional.gov.co/relatoria/1992/T-456-92.htm.
See also, Gargarella, Law and Social Protests, supra note 75, at 140 (noticing the closeness
between the Colombian and the North American standards).
162
show that there are justified reasons to conclude an alteration of the public
order is imminent215—recalling previous decisions where it has also held
public assemblies will inevitably bring restrictions on the free circulation of
bystanders, restrictions that are to be expected in a democracy.216 Something
similar has been suggested in the admittedly more restricted context of the
United Kingdom. There, the House of Lords has restricted the discretionary
powers the police enjoyed before the Human Rights Act was passed.217
Moreover, in determining whether disorder is likely to occur authorities are
restricted from looking to previous disturbances. In other words, previous
disorders are no guarantee they will occur again in the future.218 It should be
mentioned that, in light of the freedom of peaceful assembly, direct advocacy of
violence by organizers might well be a reason to restrict assemblies.219
The second TPM-related issue is the displacement of dissent. TPM restrictions,
particularly those of place and time, will normally have the effect of altering the
plans of protesters. Protests are intended to call political attention; therefore,
215
Judgment of October 27, 2003, Constitutional Court, First Chamber, STC 195/2003, at para.
II.4.
216 Id., at para. II.9. In a similar sense the Constitutional Court of Peru has reasoned restriction
of the freedom of assembly can only be deemed constitutional when based on probable causes,
“objective and duly justified reasons.” Corte Constitucional [C.C.] [Constitutional Court],
diciembre 7, 2005, Sentencia EXP. No 46-77-2004-PA/TC, available at:
http://www.tc.gob.pe/jurisprudencia/2005/04677-2004-AA.html, at para. 9.2 (18) (my
translation).
217 According to Fenwick, this was the case of Laporta. There, the House of Lords reduced the
amplitude of the concept of imminence in the common law of the breach of peace. However, as
she herself shows, this is far from a consolidated jurisprudential trend. In fact, in Austin, the
House granted the police ample deference in applying the breach of peace conditions. Fenwick,
Marginalising Human Rights, supra note 205, at 742-54.
218 So held the Supreme Court of the United States in Kunz v. New York, 340 U.S. 290, 294 (1951)
(“The court below has mistakenly derived support for its conclusion [criminal conviction of a
religious preacher] from the evidence produced at the trial that appellant's religious meetings
had, in the past, caused some disorder.”).
219 VAN DIJK ET AL., THEORY AND PRACTICE OF THE EUROPEAN CONVENTION, supra note 197, at 822
(arguing the ECtHR considers relevant the “non-violent intentions of those involved in the
assembly, and not those not involved”).
163
the specific place where, and time when, they are to happen is of utmost
importance. I will say something else about this in the following chapter when
dealing with the right to the city.
There are also some positive duties different from access rights (which I also
discuss in the following chapter), duties which stem from freedom of assembly.
First, if States have the duty not to interfere with freedom of assembly, States
also have the positive duty of removing legal obstacles to its exercise. Although
a positive duty, this is one that is negatively fulfilled most of the time. Thus,
whereas a court could find a regulation to be unconstitutional for unreasonably
regulating freedom of assembly, courts are unlikely to impose positive duties
on political branches to pass legislation/regulations in a certain fashion.220
States also have positive duties regarding what could be called factual
obstacles. The most obvious example is that of hostile audiences, which are
normally seen as a threat to public order. Here the primary duty of the State, no
doubt whatsoever a positive one, is that of safeguarding the opportunity of the
speakers to speak.221 As the United States Supreme Court put it in Fainer,
We are well aware that the ordinary murmurings and objections of a
hostile audience cannot be allowed to silence a speaker, and are also
220
This is not the place to entertain, but simply to notice, the debate regarding the fashion in
which constitutional or supreme courts exercising judicial review function. Some have
suggested judicial review of legislation is better seen as a dialogue between and among the
different branches. I am not denying that, on certain occasions, judicial decisions might lead
political branches to fill the vacuum left by a nullified regulation, and to sometimes even follow
the guidelines set by a court to do so.
221 Owen M. Fiss, Free Speech and Social Structure, 71 IOWA L. REV. 1405, 1417 (1985-1986)
(arguing that whereas TPM are often seen as limitations on the right to protests, it is also true
that in the cases of hostile audiences we see a ‘positive,’ in the sense of welcome, governmental
intervention).
164
mindful of the possible danger of giving overzealous police officials
complete discretion to break up otherwise lawful public meetings.222
This right to speak includes that of counter-demonstrators:
A demonstration may annoy or give offence to persons opposed to the
ideas or claims that it is seeking to promote. The participants must,
however, be able to hold the demonstration without having to fear that
they will be subjected to physical violence by their opponents.223
The reason seems obvious: violence from counter-demonstrators would “deter
associations or other groups supporting common ideas or interests from
openly expressing their opinions on highly controversial issues affecting the
community.”224 On the other hand, if the State (normally police authorities)
were permitted to prohibit or dissolve demonstrations simply because they feel
that counter-demonstrators may be present, thus causing a (also alleged)
disruption of public order, then that would imply that the exercise of freedom
of assembly would be subjected to a sort of de facto veto.225 Considerations on
equality might be of importance here too, for it is one case if a protest is
countered by those who oppose the purpose for which demonstrators are
advocating, but quite another when the group mobilizing is also unpopular,
marginal, and constantly excluded from regular channels of political
222
Feiner v. New York, 340 U.S. 315, 320 (1951).
Case of Plattform “Ärzte Für Das Leben” v. Austria, [1988] EHRR 204, para. 32.
224 Id. But also because violence is not deemed a form of legitimate expression. BARENDT,
FREEDOM OF SPEECH, supra note 65, at 80-1.
225 Considerations on public order sketched above are important here too, for everything I have
said here about positive duties of the State does not mean that, under certain circumstances,
there might not be sensible reasons to further regulate protests. Barendt calls for seeking
“imaginative solutions.” BARENDT, FREEDOM OF SPEECH, supra note 65, at 302-3
223
165
intervention.226 Whereas the duty of the State is not absolute, in the sense that
its resources are limited in safeguarding the rights of the speaker(s),227 when
groups involved are unpopular, marginalized, and constantly excluded from
regular channels of political influence it seems reasonable to demand a more
stringent scrutiny, for the group might be unpopular for State authorities as
well—including the police.228
The State can limit freedom of assembly—and the current state of affairs shows
shameless governments invoking ample and vague concepts as amply and
vaguely as they can be invoked—but also secure its enjoyment. Again, the State
is both a foe and friend. Freedom of assembly, as noted above, triggers a bundle
of rights (liberties and powers). Sometimes the State is required to step back,
such as when we ask it to not obstruct protests, but other times the State is
needed. By this I mean that we need the State to not only be a legal entelechy,
such as when we demand the derogation—to name a case—of statutes or
226
I have taken this distinction from David G. Barnum, Freedom of Assembly and the Hostile
Audience in Anglo-American Law, 29 AM. J. COMP. L. 59 (1981).
227 See, Plattform “Ärzte Für Das Leben,” supra note 223, at para. 34 (“While it is the duty of
Contracting States to take reasonable and appropriate measures to enable lawful
demonstrations to proceed peacefully, they cannot guarantee this absolutely and they have a
wide discretion in the choice of the means to be used.”).
228 See, for instance, the claims at issue in Edwards v. South Carolina (No 86). Edwards involved
the criminal conviction of 187 African Americans who demonstrated against discriminatory
laws in South Carolina in 1961. As the records of the case show, no member “of some 200 to
300 onlookers … [did] any threatening remarks, hostile gestures, or offensive language on the
part of any member of the crowd” (at 231). The police, however, proceeded to arrest them for
breach of the peace. In Stankov, the ECtHR held also that
If every probability of tension and heated exchange between opposing groups during a
demonstration were to warrant its prohibition, society would be faced with being
deprived of the opportunity of hearing differing views on any question which offends
the sensitivity of the majority opinion.
… The national authorities must display particular vigilance to ensure that national
public opinion is not protected at the expense of the assertion of minority views, no
matter how unpopular they may be.
Case of Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, HUM. RTS. CASE DIG.
739 (2001).
166
regulations too burdensome on citizens’ rights. We need it to be an actual State,
that is, the State in its physical form, such as when we need the State to protect
protesters from hostile audiences or, as I shall explain in the next chapter,
when we require the State to own property open to the multifarious voices
shaping public opinion.
Conclusions
The positive right to protests assumes the regime remains in place. Seen in this
light, the State is, as I have tried to show, both a friend and a foe. It is a friend
for it is the State’s very existence what confers meaningful value—and probably
a purpose—to the right to protest. It is a foe as it is its very regulatory powers
what, not uncommonly, unduly restrain the scope of the right. I have argued
that the right to protest, understood as a positive right, presents both these
advantages and limitations. The most obvious advantage stems from the fact,
probably an institutional and political fact, that States are not free to restrain
the right to protests as they please. The disadvantages, on the other hand, are
precisely within the regulatory powers of the State. Governmental regulations
following the recent upheavals have led us to consider the disadvantages more.
These disadvantages certainly exist. This is why in sections II and III I have
suggested that a correct comprehension of the foundational rights involved in
protests should lead States to opening avenues of political participation, even if
they are non-institutional, such as in the case of protests, for this is the only
path to secure that citizens will (i) continually engage in dialogue with the
167
State, (ii) remain loyal to their constitutional regimes, and (iii) be reluctant to
resort to more radical, and evil to their fellow citizens, ways of manifesting
dissent.
Of course, all these constitutional democratic goals can be cynically read and,
from the State viewpoint, cynically implemented. Because of this, some
commentators show little, if any, hope in regular means of participation—
among which protests are but one means. Nonetheless, we should have more
trust in the people themselves. As the examples from the ‘Arab Spring’
illustrate, the people are quite aware as to when a sensible constitutional faith
in current regimes has been replaced by blind obedience to an imposed topdown constitutional idolatry. Put differently, the State acting as a foe of the
right to protests might turn out to be its own foe if it unduly and illegitimately
pursues restricting dissent.
168
CHAPTER 4
THE RIGHT TO PROTEST: EXPANSIONS
I. Public forum / the right to the city
A. Public forum as a positive right
B. A positive right?
II. Participating without a face
A. From privacy to contextual integrity
B. Harms to protests
C. Surveillance
D. Counter surveillance
E. Masks, hoods, and anonymity for protesters
Introduction
“It is clear that terror is not simply an emotional and psychological phenomenon
but a physical one as well …”
Paul Virilio∗
In the previous chapter I dealt with the rights that concur in giving the
(positive) right to protests its basic form. The foundations of the rights to
protests, namely freedom of expression and of assembly are so since these are
∗
THE ADMINISTRATION OF FEAR 21 (Ames Hodges trans., Semiotext(e) 2012).
169
the basic protections protesters claim to be on their side when taking the
streets. Put differently, there is no (positive) right to protests without freedom
of expression—which protects, among other things, the right to hold and shout
dissenting views—and of assembly—the right we have to join others in public
spaces.
This chapter focuses on the expansions of the (positive) right to protest. It calls
attention on matters that are not foundational to the right to protests, but
certainly are of utmost importance for the constitutional protection of
protesters. The matters this chapter deals with are expansions in a twofold
sense. This is first because—as I argue below—they expand, in the sense that
they strengthen, the constitutional protection of protests. Second, they are
expansions in that they take us to consider situations that normally would go
unnoticed—or at least are not necessarily related to the right to protest. In
other words, this chapter argues to expand the view of the constitutional
protection of protests and consider restrictions on the right to protest that are
usually harder to identify and protect.
The first section (I) goes (in a sense) back to foundations sketched in the
previous chapter in order to question what many have called the positive face
of the right to protests, that is, the public forum doctrine. While an important
development in that it questions a State’s behavior as a private proprietor
when regulating protests, it still falls short in actually procuring State’s positive
obligations. I will take insights from what is known as the right to the city
(mainly contributions from urban geography) to expand our views on matters
170
that seem irrelevant, but that end up being seriously inimical, to protests (i.e.
privatization).
In the following section (II), I analyze a socially vitalized form of privacy to
justify the political right to participate without a face. The argument of this
section is that protesters, even when in public, still hold a form of privacy. As I
argue below, this is not oxymoron, for protests are still public, and therefore
political, expressions whose arguments are presented in an open-to-all fashion.
What this argument holds, however, is the right that individuals have—when
they consider appropriate to do so—to prevent others, including the State, from
knowing their actual identities or using the information States gather through
different means in a way that affects the right to protest. This is a particularly
pressing issue when we consider the general context in which protests take
place. This is a context of concentrated violence in the hands of the State and its
intelligence services, whose costs (like physical violence and unidirectional
imposed restrictive regulations) are directly and indirectly placed on
protesters. This is an even more urgent concern in regions, such as in Latin
America, where institutions (like the police) have been inherited from recent
dictatorships and that are still going under, sometimes stormy, democratic
adjustment.1
I. Public forum / the right to the city
1
I owe Roberto Gargarella this formulation of the general and particular implications of privacy
for protests.
171
“Whatever else a city may be,” Eric Hobsbawm wrote some years ago, “it is at
the same time a place inhabited by a concentration of poor people and, in most
cases, the locus of political power which affects their lives.”2 Urban spaces, in
fact, cannot divorce the political, material and cultural conditions they have
been erected upon, and—as Douzinas has pointed out—they “express[] the
inequality of social relations and offer[] a site of conflict.”3 Urban spaces are the
locations where political disagreements take physical existence and actually
pervade every corner of urbanity—as I shall show now, they are spaces where
different layers of conflict cohabit.
Urban spaces, in fact, are an extension of ourselves, thus merging with the self.4
What the city is defines, to a certain degree, what we are. As David Harvey put
it,
the question of what kind of city we want cannot be divorced from the
question of what kind of people we want to be, what kind of social
relations we seek, what relations to nature we cherish, what style of life
we desire, what aesthetic values we hold.5
The right to the city, following these definitions, is more than mere access
rights or privileges to enjoy the city’s amenities (although these are certainly
included), but a collective political right “to change and reinvent the city more
2
Eric J. Hobsbawm, Cities and Insurrections, in REVOLUTIONARIES. CONTEMPORARY ESSAYS 220
(1973).
3 Costas Douzinas, Athens Rising, 20 EUROPEAN URBAN & REGIONAL STUDIES 134 (2012).
4 This is brilliantly explained by Mustafa Dikeç, who shows public space performs a double,
sometimes dialectic, function: it unites by bringing people together and, at the same time,
separates as it permits individuals to display their own uniqueness—“as distinct from others,”
although built and shaped in interaction with others. Mustafa Dikeç, Space as a mode of political
thinking, 43 GEOFORUM 669, 672 (2012).
5 DAVID HARVEY, REBEL CITIES: FROM THE RIGHT TO THE CITY TO THE URBAN REVOLUTION 4 (2012).
172
after our heart’s desire.”6 We need not dig much to find conflict and
disagreement as to the collective formation of this ‘cityness’—to use Saskia
Sassen’s terminology.7
This right, however, has been itself the subject of struggle and conflict as the
notions of what public spaces are, who can access them, who is deemed as
contributing to its definition, and who is seen as an inappropriate user have
always been part of our political struggles and disagreements. As Don Mitchell
argues, there are, indeed, many forms through which access to urban spaces is
permitted/limited, including “environmental change, behavior modification,
and stringent policing,” so as to maintain public spaces “‘public’ rather than
hijacked by undesirable users.”8
Experience shows, therefore, that the right to the city is also, and above all,
exercise and practice. In fact, Mitchell contends that no matter how laws
guarantee liberties and rights their actual protection is their practice.
Constitutional liberties are thus always contested and “always proven in
practice, never, that is, guaranteed in the abstract.”9 The very idea of public
spaces and constitutional rights, in fact, “has never been guaranteed. It has only
been won through concerted struggle, and then, after the fact, guaranteed (to
HARVEY, REBEL CITIES, supra note 5, at 4.
Saskia Sassen, Does the City have a Speech?, 25 PUBLIC CULTURE 209, 214-5 (2013) (arguing
‘cityness’ corresponds to collective and interdependent dynamics “making the public and
making the political in urban space,” dynamics that take place beyond specific disagreements
and conflicts).
8 DON MITCHELL, THE RIGHT TO THE CITY. SOCIAL JUSTICE AND THE FIGHT FOR PUBLIC SPACE 2 (2003).
9 Id., at 4.
6
7
173
some extent) in law.”10 This is why, according to Sassen, the right to the city is
something that is both established and always contested. This ‘cityness’ she
talks about is conceived as
a kind of public-making work that can disrupt established narratives and
thereby make legible the local and the silenced even in visual orders that
seek to cleanse urban space.11
Of course, in this vision of the city, one where the people take an active, rather
than a passive, role in shaping its understanding and political comprehension,
some tolerance to danger, disorder and violence must exist.12 This city is no
longer one where authorities summon their subjects—“an admiring and
applauding audience,” as Hobsbawm put it13—to display the power of the State
with big fanfare and eloquence, but one where citizens take quite an active role
in shaping and defining publicity.
This implies a third dimension of conflict and struggle, one that relates to the
very definition of public space, for public places where the political is present
are no longer those ceremonial sites previously determined by the authority
(although these sites are certainly included).14 Rather, these public places have
Id. at 5. See also, MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM COURTS 168-9 (1999)
(arguing that there is no need for a court vested with judicial review powers to “have a vibrant
language of fundamental rights” that can be defended politically).
11 Sassen, Does the City have a Speech?, supra note 7, at 214.
12 MITCHELL, THE RIGHT TO THE CITY, supra note 8, at 5 (“Struggle—which is the only way that the
right to public space can be maintained and the only way that social justice can be advanced—is
never without danger of violence.”).
13 HOBSBAWM, Cities and Insurrections, supra note 2, at 224.
14 Id. at 230 (“No doubt why these sites, deemed by all as the places of power, are one of the
preferred sites for rioting, protesting and occupying. Precisely because they express the locus
of power they are places worth rioting against; popular protests, in fact, are aimed, at least
transitorily, to blur the division rulers/ruled and the occupation of ceremonial sites and
buildings shows thing are taking that turn.”).
10
174
expanded to encompass what Saskia Sassen calls the ‘global street.’15 What
characterizes the global street is its difference from more European-style
ritualized places. Whereas these latter places operate under the recognition of
spaces where politics occurs through ritualized routines (i.e. an official parade
where the public assumes, or is imposed, a passive mood), the global street sees
urban public spaces as opened to political action. Thus, different from
European piazzas and boulevards, the global street is conceived “as [any
available open] space where new forms of the social and the political can be
made, rather than a space for enacting ritualized routines.”16 Hence, that what
signals the global street is neither ceremonies nor rituals, but action.17
Finally, this action implies the coming together of people who strive to become
political subjects, a struggle which is itself political. In this sense, public
spaces—and spatialities in general—work as a catalyst for groups sometimes
holding radically different views “to protest against, or wrest control from,
those holding the reins of power.”18 By appearing publicly these groups become
political subjects, even if they are not formally citizens;19 they become visible
where they were previously ignored;20 they get a voice and speech where
before they were considered pure noise;21 and they finally get the chance to
15
Saskia Sassen, The Global Street: Making the Political, 8 GLOBALIZATIONS 573 (2011).
Id. at 574.
17 Id.
18 Walter Nicholls et al., Introduction: Conceptualizing the Spatialities of Social Movements, in
SPACES OF CONTENTION. SPATIALITIES AND SOCIAL MOVEMENTS 1, 1 (Walter Nicholls et al., eds. 2013).
19 Think, for instance, of protesting immigrants.
20 Douzinas, Athens Rising, supra note 3, at 136-7.
21 Dikeç, Space as a mode of political thinking, supra note 4, at 674.
16
175
make history.22 This is so because, as Dikeç has noted reading Arendt, the
political space is the space of appearing.23 Or more concretely,
the right to the city is a claim for the recognition of the urban as the
(re)producer of social relations of power, and the right to participate in
it.24
In this fashion, the concept of citizenship is enhanced and pluralized.
Citizenship is no longer univocally seen as a legal link (formal) that attaches
one to a given territory (territorial), but a substantive and structural set of
relations that take place in the city. It is a right that is “not inscribed on paper
but cultivated through sharing space.”25
A. Public forum as a positive right
Urban spaces are political sites. They are places where our political
disagreements take actual form and appear. As Costas Douzinas has remarked
on recent popular uprisings, public appearances have contributed to concretize
the public sphere from a sociological concept to a political time and space.26
The city is political and therefore the locus of conflict.27 Public spaces are
politically relevant since they represent the where of politics helping to
22 The ‘global street,’ Sassen argues, offers the powerless the space to “make history …
[b]ecoming present, visible to each other [they] can alter the character of powerlessness.”
Saskia Sassen, Does the City have a Speech?, supra note 7, at 213.
23 Dikeç, Space as a mode of political thinking, supra note 4, at 671 (“The ‘who’ of the acting
subject—her unique distinctness—is revealed to others through speech and action in a space of
appearance—when acting, in other words, in the presence of others. This plurality, for Arendt,
is ‘the condition sine qua non for that space of appearance which is the public realm’.”).
24 Liette Gilbert & Mustafa Dikeç, Right to the City. Politics of citizenship, in SPACE DIFFERENCE,
EVERYDAY LIFE: READING HENRI LEFEBVRE 250, 254 (Kanishka Goonewardena et al. eds. 2008).
25 Id. at 258.
26 COSTAS DOUZINAS, PHILOSOPHY AND RESISTANCE IN THE CRISIS 165 (2013).
27 We should not overlook that these conflicts are mediated by the very same processes that
produce ‘civicness.’ The city, therefore, it is a space of conflict but also the place of dynamics
that permit triaging that very same conflict in ways different from a militarized response.
Sassen, The Global Street, supra note 15, at 575.
176
decisively, if not entirely, define which voices are heard and which voices are
excluded.28 This is why it is so important to scrutinize who is accepted and who
excluded, for, as the Constitutional Court of Spain notably held, in a “democratic
society, urban spaces are not just a field to move, but also a space of
participation.”29
I noted above that freedom of expression is important in that it compels the
State to refrain from encroaching on the people’s right to express themselves in
a politically meaningful way. Freedom of assembly, I later suggested, is also
relevant in that it strengthens the protection afforded to protests as States have
the duty not to block public meetings. I also noted these freedoms involve
certain positive duties such as removing legal obstacles and protecting
protesters from hostile audiences. Are States also subject to more stringent
positive duties implying opening spaces?
To effectively protest, that is to politically appear having a voice on crucial
political matters, the right to the city requires State. It actually requires the
State to own property common to all and which is, as it has been the aspiration
of many protesters, open to all voices and inputs. Because the right to the city
mostly implies positive duties I will look at this issue in more detail. I will also
now consider freedom of expression and of assembly in unison to see how they
strengthen the right to protest.
28 Don Mitchell & Lynn Staeheli, Permitting Protest: Parsing the Fine Geography of Dissent in
America, 29 INTL’ J. URBAN & REGIONAL RESEARCH 796, 798 (2005).
29 Judgment of October 27, 2003, Constitutional Court, First Chamber, STC 195/2003, at para.
II.9.
177
Positive duties, roughly put, imply that the State must not only refrain from
censoring or discriminating speech, but also that it is under the obligation of
providing “opportunities or facilities for speech.”30 In the words of Robert
Alexy, the State is under the duty of positive acts when it is asked to provide
factual acts or to create legal positions to satisfy rights.31 It is little wonder that
political theories interested in deepening democratic self-government have
argued in favor of these enlarged governmental duties.32 But what happens
from a legal viewpoint?
The answer is debatable and depends to a large extent on the specific
constitutional context. This does not prevent us from some initial
considerations. Frederick Schauer, for instance, thinks freedom of expression
only triggers negative duties.33 It is a ‘negative liberty’ established precisely
against interference.34 Positive obligations, he claims, would cause differences
in treatment by favoring the expressive activities of some groups to the
prejudice of others—prejudices that include the interference with others’
rights.35 In “each instance the decision to enhance the actual ability of one
individual or entity to communicate,” Schauer argues persuasively, “will at the
30
ERIC BARENDT, FREEDOM OF SPEECH 101 (2007 2nd ed.).
ROBERT ALEXY, A THEORY OF CONSTITUTIONAL RIGHTS 126-7 (Julian Rivers trans., 2010).. It is
worth noticing that constitutionally protected liberties, such as freedom of expression, can be
positively protected by the State when combined with a right to a positive act (149). Once
again, the proper understanding of constitutional rights arises once we consider a right as a
bundle of constitutional rights positions.
32 NADIA URBINATI, DEMOCRACY DISFIGURED. OPINION, TRUTH, AND THE PEOPLE 65 (2014); PHILIP
PETTIT, ON THE PEOPLE’S TERMS: A REPUBLICAN THEORY AND MODEL OF DEMOCRACY 201-2 (2012).
33 FREDERICK SCHAUER, FREE SPEECH: A PHILOSOPHICAL ENQUIRY 129 (1982).
34 Id.
35 Id. at 125-8.
31
178
same time create a legal restriction” on others.36 The decision regarding whom
to favor with positive rights involves “the government in the process of
selecting and distinguishing.”37
Eric Barendt, on the contrary, thinks freedom of speech cannot be considered in
solitude, rather in context. Barendt argues that free speech must honor
equality, particularly when dealing with the path our polity may take.
In constitutional schemes that also recognize a right to equality, this is a
somewhat unavoidable path. Positive obligations are particularly relevant
where there is the risk of public discourse being captured by some voices (“the
rich and powerful,” Barendt writes,38 and “television networks and a number of
large newspapers and magazines,” Fiss warned some years ago),39 therefore
disgracing the equal right to participate.40 Freedom of expression and the right
to assembly which are understood as political rights, and thus as (part of) our
equal share in the making of the laws, cannot be regarded as “merely ‘negative’
rights.”41 In fact, these political rights require, just as any other right,
the institution and operation of administrative systems … involve
manpower and resources … presuppose a relatively stable and wellorganized society; and … require governments and government officials
Id. at 128. But see, OWEN M. FISS, THE IRONY OF FREE SPEECH (1996). (arguing that the exercise of
freedom of speech itself might imply silencing others).
37 Id.
38 BARENDT, FREEDOM OF SPEECH, supra note 30, at 106.
39 Owen M. Fiss, Why the State?, 100 HARVARD L. REV. 781, 787 (1987).
40 BARENDT, FREEDOM OF SPEECH, supra note 30, at 106.
41 JEREMY WALDRON, LAW AND DISAGREEMENT 232-3 (1999).
36
179
to do certain things under certain conditions, not merely refrain from
doing certain things.42
This approach is also reconciled with that of the international human rights
law, where the positive obligation to protect rights is not an absolute. This
means that positive obligations are instead understood as an ‘obligation of
means.’43 Authorities are bound to take reasonable and appropriate steps to
ensure rights and are granted ample margin to choose the means they deem
necessary in doing so.44
The mandate is directed at authorities. This is why positive duties should not
necessarily be seen as speaking exclusively to courts—which have been
reluctant to uphold wide constitutional positive rights45—but to every
governmental avenue. In other words, (constitutional) courts might at times
interpret the constitution as requiring positive duties, and so may legislatures
when passing access rights.46 “The legal form in which the right is satisfied,”
Alexy has claimed, “is quite irrelevant.”47
Positive obligations have proven particularly relevant for social protests. As
Barendt argues, insisting on the need of taking an egalitarian approach, “the
poor and oppressed can only express their opinions through demonstrations
42
Id. at 233-4. See also, STEPHEN HOLMES & CASS R. SUNSTEIN, THE COST OF RIGHTS: WHY LIBERTY
DEPENDS ON TAXES (1999) (arguing the distinction between negative—as noninterference—and
positive rights—as welfare rights—is futile as all rights are positive).
43 OLIVER DE SCHUTTER, INTERNATIONAL HUMAN RIGHTS LAW 414 (2011 repr.)
44 Id.
45 Eric Barendt, Freedom of Expression, in THE OXFORD HANDBOOK OF COMPARATIVE CONSTITUTIONAL
LAW 891, 897 (Michael Rosenfeld & András Sajó eds. 2012).
46 BARENDT, FREEDOM OF SPEECH, supra note 30, at 103.
47 ALEXY, A THEORY OF CONSTITUTIONAL RIGHTS, supra note 31, at 126.
180
on the streets, and in meetings held in premises they do not own.”48 In
considering these positive obligations, just as Barendt does,49 it is useful to
notice how freedom of speech merges with the right to assembly.50 The result is
what has become to be known as the public forum doctrine. However, as the
State is always a friend and foe, I want to show that the public forum doctrine is
both a legal translation and (at the same time) a disfiguration of the right to the
city.
Do the people have a right to use government property, such as streets, as a
forum and not as a passageway? Do the people have the right to gather in parks
in order to present their political views, instead of doing so just for leisure?51
The Supreme Court of the United States answered affirmatively. In Hague, it
held the government cannot treat State-owned property as if it had a private
owner; they must accept the burdens of democratic participation.52
Wherever the title of streets and parks may rest, they have
immemorially been held in trust for the use of the public and, time out of
mind, have been used for purposes of assembly, communicating
thoughts between citizens, and discussing public questions. Such use of
48
BARENDT, FREEDOM OF SPEECH, supra note 30, at 106.
Id. at 270
50 Recall that in the previous chapter I noted that the Human Rights Council showed its doubts
as to whether different legislations related to different rights strengthen or diminish the
protection of protests. I would tentatively say that if we consider that this merging of rights lays
positive duties to the State, then there is no doubt the right to protest ends up being reinforced.
However, as it is the case with every positive (as opposed to natural) regulation, there are
limits as well (what above were described as TPM regulations).
51 Harry Kalven, Jr., The concept of the public forum: Cox v. Louisiana, 1965 SUP. CT. REV. 1, 12
(1965).
52 Hague v. CIO, 307 U.S. 496 (1939).
49
181
the streets and public places has, from ancient times, been a part of the
privileges, immunities, rights, and liberties of citizens.53
The State, in other words, is not like any individual proprietor, rather someone
who holds property in trust from the people themselves.54 As the Supreme
Court of Canada put it back in 1991, an absolutist approach to State-owned
property would “fail[] to take into account that the freedom of expression cannot
be exercised in a vacuum and that it necessarily implies the use of physical space
in order to meet its underlying objectives.”55
That access to public spaces is beneficial as expression should not be hard to
understand. For one, protesters would be permitted to obtain access to a large
array of people. This allows them to amplify their message by reaching audiences
who may not be aware of the topics challengers are presenting. They may also
succeed in changing the views of those in the audience who do know the issues at
hand.56 For another, access to public spaces proves particularly crucial for certain
specific claims; when protesters want the State to listen—as is the case in most
protests—there are certain specific buildings that are worth targeting, either
because of their symbolic value or because those are the places where public
authorities actually operate (i.e. legislatures).57
53
Id. at 515.
However, it should be noted that not all public property is deemed to be public forum and
therefore subject to the very same constitutional standard. Accordingly, the government’s
ability to regulate activities depends on the kind of property we are talking about. The
government has more latitude to regulate activities taking place in public property not
considered to be public forum. See, ROBERT C. POST, CONSTITUTIONAL DOMAINS. DEMOCRACY,
COMMUNITY, MANAGEMENT 199, 208-11 (1995).
55 Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139, at 155.
56 CASS R. SUNSTEIN, REPUBLIC.COM 2.0 26 (2007).
57 Id. at 26-7.
54
182
The right to use public property as a forum is, of course, not absolute. As soon as
the Court in Hague held streets and public places could be used for
“communicating thought between citizens and discussing public questions,” it
qualified this right:
The privilege of a citizen of the United States to use the streets and parks
for communication of views on national questions may be regulated in
the interest of all; it is not absolute, but relative, and must be exercised
in subordination to the general comfort and convenience, and in
consonance with peace and good order; but it must not, in the guise of
regulation, be abridged or denied.58
As Kalven put it some time ago, public forum requires accommodation of the
conflicting interests,59 for streets are not only meeting places, but they “are also
dedicated to other uses, such as travel.”60 This conflict of interests requires “to
work out mutually satisfactory arrangements”61 that—as seen before—target
not the content of speech, but the timing of the activity.62
B. A positive right?
The public forum doctrine is a pretty widespread concept,63 despite its limited
benefit in some regions.64 It is also mainly a legal category. Perhaps this is the
58
Hague, at 515-6.
Kalven, The concept of the public forum, supra note 51, at 26.
60 Id.
61 Id. at 27.
62 Id. See also, BARENDT, FREEDOM OF SPEECH, supra note 30, at 281.
63 See, Barendt, Freedom of Expression, supra note 45, at 897-8 (giving a general account of the
doctrine related to access to State-owned places); RICHARD MOON, THE CONSTITUTIONAL
PROTECTION OF FREEDOM OF EXPRESSION 148-51 (2000) (explaining how Canada has given shape to
its own version of the public forum doctrine).
64 ¿ES LEGÍTIMA LA CRIMINALIZACIÓN DE LA PROTESTA SOCIAL? DERECHO PENAL Y LIBERTAD DE EXPRESIÓN
EN AMÉRICA LATINA [IS IT LEGITIMATE TO CRIMINALIZE SOCIAL PROTEST? CRIMINAL LAW AND FREEDOM OF
EXPRESSION IN LATIN AMERICA] (Eduardo Bertoni comp. 2010) (reviewing the discretionary,
59
183
reason why it falls short in answering two crucial critiques. One shows the
public forum doctrine itself has built in the concept of limitations by authority.
The other shows the public forum doctrine is unable to deal with the effects of
legal regulations on dissenting speech, the effects being the unavoidable
restriction on dissenting speech, regardless if that restriction was not the
purpose the authority sought.
First, there are numerous voices that have warned about the pernicious effect
of the public forum doctrine in terms of the doctrine itself.65 Whereas it
accepted new forms of protected expressions such as picketing and protests, it
is also true that this has come at the cost of granting the authority enormous
powers to regulate dissenting speech. The trick, Mitchell has argued, is not
targeting speech (the what), but where it is said.66 The public forum doctrine
assumes that political speech is in fact to be subordinated to “the general
comfort and convenience.”67 By tracing the history of the public forum doctrine
in the United States, Don Mitchell argues access to public space has indeed
always been subjected, if not directly constrained, by a certain understanding
selective and, at times, unlimited resort to criminal law in Latin American countries to deal with
social protests).
65 Tabatha Abu El-Haj, The Neglected Right of Assembly, 56 UCLA L. REV. 543, 585 (2009) (“while
cases involving these related doctrines frequently rehearse the words of Justice Roberts in
Hague v. CIO that streets from ‘time out of mind, have been used for purposes of assembly,
communicating thoughts between citizens, and discussing public questions,’ substantively, they
all take as undisputed the correctness of the view that permit requirements are constitutionally
permissible within certain parameters.”).
66 Don Mitchell, The Liberalization of Free Speech: Or, How Protest in Public Space is Silenced, in
SPACES OF CONTENTION, supra note 18, at 47. See also, Mitchell & Staeheli, Permitting Protest, supra
note 28, at 801 (noting public forum doctrine creates broad legal spaces for regulating, and
even prohibiting, speech and assembly on public property).
67 Mitchell, The Liberalization of Free Speech supra note 66, at 50-1.
184
of appropriate behavior.68 This is what he calls the ‘liberalization’ of speech: the
assumption that there is only one way in which political speech can be put
forward. As he puts it, public forum accepts dissenting ideas, but
these ideas, however, have to stand or fall on their own merits as they
enter into competition with other ideas; the better ideas win, but only by
being tested against less worthy ideas. [If] … speech is forced into the
public arena, or if violence accompanies that speech, it can and must be
regulated.69
Although rejection of violence as protected speech is a commonplace in
freedom of expression doctrines, Mitchell warns about the very fashion in
which violence has been determined over the years. In the early 1900s, for
instance, merely picketing or assembling was automatically seen as an act of
violence—or an act that would undoubtedly lead to violence.70 This is so, as
András Sajó has argued in the context of constitutional understandings and
institutions, because assumptions about what constitutes violence or what
actions risk triggering violence are “culturally framed.”71 In fact, it is not hard to
see that there are specific forms of collective behavior that receive privileged
treatment by authority. Sajó mentions the behaviors of “[v]oting, organized
manifestations of religion or other election-related activities,” which are
“nearly unconditionally free, although an equal level of irrationality should
68
Don Mitchell, Political violence, order, and the legal construction of public space: power and the
public forum doctrine, 17 URBAN GEOGRAPHY 152 (1996).
69 Id. at 153.
70 Id. 155-60.
71 ANDRÁS SAJÓ, CONSTITUTIONAL SENTIMENTS 259 (2011).
185
have made them equally suspect.”72 The truth is that preoccupations arise not
with gatherings and demonstrations themselves, but with a certain kind of
gathering or demonstration (normally those seen as problematic in light of
prevailing social, cultural, political, and thus legal constructions).73
This sheds light on another built-in limitation of the public forum doctrine, for
the very canonical formula according to which we are to determine what spaces
are public forums shows a history of exclusion and hegemonic determination of
what is permitted. Recall that in Hague public forums were defined as those
places that “have immemorially been held in trust for the use of the public and,
time out of mind, have been used for purposes of assembly, communicating
thoughts between citizens, and discussing public questions.”74 Although they
are called public spaces, experience shows that many of these sites have been
envisioned upon the basis of exclusion. In other words, experience shows that
there are few spaces that have ‘always’ been used by citizens to gather and
communicate political ideas.75 There are few public spaces that have not been
built upon some form of exclusion,76 an exclusion of what authorities have
deemed undesirable, thus shrinking the concept and content of rights.77 In
other words, we are not talking here of spaces that have been immemorially
used as political fora by all citizens, but—just as only certain displays of
72
Id. at 247.
Id., at 247.
74 Supra note 52.
75 Don Mitchell, Introduction: Public Space and the City, 17 URBAN GEOGRAPHY 127, 127 (1996).
76 Id. (pointing to feminist arguments, Mitchell argues that “idealized public spaces such as the
agora … are not and never have been any truly open public spaces where all may freely
gather.”).
77 MITCHELL, THE RIGHT TO THE CITY, supra note 8, at 8-9
73
186
collective action were deemed permitted—of places where only some have
been allowed to appear.
The second critique of the public forum doctrine relates to the effects of legal
regulations. The public forum doctrine has been praised as it prohibits
governments from limiting dissenting speech based on content or viewpoints,
and also as it invites dissenters to determine, along with their governmental
counterparts, the conditions of protests. However, we should not overlook the
limiting effect on speech, particularly on dissenting speech, that the public
forum doctrine has not impeded—or, as Mitchell has put it, that it has
concealed.78 Regulations of places, in other words, have a large and quite
uneven impact on participatory rights by preventing certain speech from being
disseminated.
As noted before, TPM regulations leave ample room for States to justify
limitations without having to disclose their actual intentions. As John H. Ely put
it some time ago, “the state obviously can move, and often does, ‘simply’ to
control the time, place, and manner of communication out of concern for the
likely effect of the communication on its audience.”79 So the first question is as
follows: who defines what the public forum is?
Whereas the definition of public forum has been regularly seen as a
governmental decision, a sort of a top-down decision protesters have no
alternative but to abide, recent approaches stress the fact TPM regulations
78
Mitchell, Political violence, supra note 68, at 169-71 (arguing that, although courts have
moved from targeting speech to target the places where it is said, the issue and effects remain
the same: “exclusion in the name of social order”).
79 John H. Ely, Flag Desecretation: A case study in the roles of categorization and balancing in
First Amendment analysis, 88 HARV. L. REV. 1482, 1498 (1975).
187
open the space to negotiate places and times of protests.80 This means that both
the State and citizens engage in determining the scope of rights exercise
(normally limiting rights). However, as some have argued, it is not at all
obvious that these restrictions are in fact defined in a negotiated- or consentbased manner. Moreover, security concerns (there will always be an excuse for
this) have swung the pendulum back to top-down impositions of restrictions. In
fact, as Tabatha Abu El-Haj has argued, the model of TPM regulations became
accepted under the crucial (usually hidden, overlooked or simply ignored)
assumption that it is the State who defines public forum at will, just like any
other private proprietor.81 Places and times for dissent are thus exactly
determined, perhaps with the intention of silencing dissent, perhaps not, but in
any case incorporating dissent into “the liberal democratic state.”82 Therefore,
political dissent, when not chilled,83 is strictly shaped and controlled.84
Places of protests (public fora) are determined in a top-down fashion by a State
that imposes the concept of order as the State sees it. There are further reasons
that explain why TPM regulations have an uneven impact. First, not everyone
resorts to social protests. As Mitchell has argued, there is a striking similarity
80 John D. McCarthy & Clarck McPhail, the Institutionalization of Protest in the United States, in
THE SOCIAL MOVEMENTS SOCIETY: CONTENTIOUS POLITICS FOR A NEW CENTURY 83, 83-4 (David S. Meyer
& Sidney Tarrow eds., 1998)
81 “For the legislature absolutely or conditionally to forbid public speaking in a highway or
public park,” Holmes wrote back in 1895, “is no more an infringement of the rights of a member
of the public than for the owner of a private house to forbid it in his house. When no
proprietary rights interfere, the Legislature may end the right of the public to enter upon the
public place by putting an end to the dedication to public uses. So it may take the lesser step of
limiting the public use to certain purposes.” This famous passage from Oliver Wendell Holmes,
although seriously diminished by subsequent decisions, remains relevant, Abu El-Haj contends.
Abu El-Haj, The Neglected Right of Assembly, supra note 65, at 583-4.
82 Mitchell & Staeheli, Permitting Protest, supra note 28, at 797.
83 PETER DAUVERGNE & GENEVIEVE LEBARON, PROTEST INC. THE CORPORATIZATION OF ACTIVISM 65-74
(2014)
84 Mitchell & Staeheli, Permitting Protest, supra note 28, at 797.
188
between the economic metaphors utilized by the public forum doctrine
(marketplace of ideas, free trade of ideas, and so on) and the very same
abstraction that economic theories need to be sound, for, just as liberal
formulations on free access to market and equal bargaining power—Mitchell
insists—, here too power relations of society have been completely ignored.85
Recalling Justice Brennan’s words, Mitchell adds,
Those who can communicate through ordinary channels of modern
discourse—because they controlled or could afford access to the
media—have little need for popular demonstrations in the street.86
Despite the uneven impact TPM regulations have, most constitutional systems
see consequences on speech and mobilizations as accepted side effects of
regulations. Consider the case of occupiers in Calgary against whom the city
issued an injunction ordering them to remove all the tents and structures they
had kept on the Olympic Plaza.87 The Court of Queen’s Bench of Alberta
reviewed whether there were any extraordinary circumstances (i.e. violation of
Charter rights) which could prevent the city from pursuing its order.
Interestingly enough, the city of Calgary acknowledged that the Occupy Calgary
encampment and its different city occupations are “expressive activities.”88
85
Mitchell, Political violence, supra note 68, at 170.
Id. A recent research conducted throughout Latin America in 2009-10, and promoted by the
UNDP, shows that political social conflicts in the region happen against a background of
pervading inequality. One of the main conclusions of the report is that the larger the social gaps
are, the more, and more radicalized, protests occur. LA PROTESTA SOCIAL EN AMÉRICA LATINA
[SOCIAL PROTEST IN LATIN AMERICA] 15-7; 23-4. (Fernando Calderón coord., 2012). The report also
shows that a high percentage of those protesting are those excluded from regular politics—
either deliberately or simply because there is a lack of institutional channels of participation,
therefore reproducing historical, cultural and social patterns of domination (Id. at 131-5).
87 I am taking the issues from Calgary (City) v. Bullock (Occupy Calgary), 2011 ABQB 764, at para
27.
88 Id. at para 31.
86
189
Moreover, it actually “conceded that the effect of injunctive relief requiring the
dismantling of the encampment will be to restrict the Respondent’s [occupiers]
expression.”89 While this left little room for the court to maneuver, it did not
prove to be conclusive. In fact, the court found restrictions on the uses of parks
to be reasonable and proportional, and therefore constitutional.90
This debate replicates the discussion concerning the way governments resort
to neutral regulations—before reviewed. As long as these regulations are
content-neutral, narrowly tailored and so on, restrictions of time, place and
manner will be deemed constitutional no matter their unequal impact. The
problem, as I am arguing here, is that this carapace of neutral regulations hides
the displacement of dissent. Permit systems, covered under mutually-agreed
conditions for protesting, in fact unleash outcomes similar to those of neutralbased regulations, silencing dissent voices while at the same time “giving the
appearance that public space is politically inclusive.”91 Put another way, as
Mitchell has suggested, the public forum doctrine helps to guarantee “the right
to speak” in public spaces but says little, if anything, on “the question of
effective access to that forum by those who need to speak in the street.”92 The
public forum doctrine, and its acceptance of allegedly neutral regulations, ends
up being a law that treats everyone in the same fashion, thus “reinforc[ing]
unjust social relations.”93
Id.
Id. at paras 33-45 (reasoning restrictions were i. prescribed by law; ii. reasonable and
demonstrably justified; iii. pursuant of an important governmental objective; and, iv.
proportional). In a very similar sense see, Batty et al. v. City of Toronto, 2011 ONSC 6862.
91 Mitchell & Staeheli, Permitting Protest, supra note 28, at 798.
92 Mitchell, Political violence, supra note 68, at 171 (emphasis in the original).
93 Id. Lenin magnificently emphasize this, although with a different purpose:
89
90
190
This is why, as I argued before with neutral regulations of speech, we should
also consider contexts more carefully.94 This would allow us to determine
whether those subject to TPM restrictions are always the same unpopular
groups whose voices are also despised in institutional avenues. The specific
political milieu in which these restrictions are being issued and applied, for
instance, may be, despite formal neutrality, very telling of what the specific
governmental targets are.
It is public forum neutrality, that is, public forum doctrine’s refusal to consider
the specific social and political conditions of those who protest, what also
explains the doctrine’s shortcomings before subtler—although highly
documented—forms of limiting dissenting speech such as privatizations.
Limitations here work in a double fashion: first, by shrinking public forums
and, second, by refusing to grant protest rights in those private spaces.
It is not hard to see how privatization of what was before State-owned property
limits political spaces.95 This privatization includes, among others, the
reconstruction and fencing of parks and large urban areas, and the
If we look more closely to the mechanism of capitalist democracy, we shall see
everywhere … in the real obstacles to the right of assembly (public buildings are not for
beggars!) … we shall see restriction after restriction.
These restrictions, exclusions, exceptions, obstacles for the poor, seem petty, especially
in the eyes of anyone who has never known want himself and never been in close
contact with the oppressed classes in their mass life … but the sum total of these
restrictions excludes and shoves out the poor from politics, from active participation in
democracy.
V. I. LENIN, THE STATE AND THE REVOLUTION 79 (Robert Service trans., Penguin Classics 1992)
(1918).
94 See, Timothy Zick, Property, Place, and Public Discourse, 21 WASH. U. J. L. & POL’Y 173, 208-9
(2006) (“Given the constitutional recognition of place, courts should far more carefully
consider the impact that spatial regulations have on opportunities for public discourse.”).
95 I am talking here of private property sensu stricto. Others have suggested that certain
regulations upon public spaces create a form of privatization without altering property
regimes. This may occur by securing permits which allow users (say those in a political rally) to
expel the opposition. Kevin Francis O’Neill, Privatizing public forums to eliminate dissent, 5 FIRST
AMEND. L. REV. 201 (2006-2007).
191
privatization of services and security of those services, such as the installation
of thousands of surveillance cameras in train stations. “Whole public spaces,” as
Mitchell notes, are “closed off for much of the day, locked tight against
unwanted users.”96 Downtowns, where people used to gather, have
“increasingly become anomalies in a landscape cluttered with suburban
shopping and strip malls,” tells McLeod,97 while the public spaces that remain
“are often designed to facilitate commerce and recreation, rather than
expression.”98 In fact, privatizations and urban planning trends are far from
being unconscious of the effects sought on dissent.99 New property regimes,
therefore, dictate where political speech is tolerated and who is welcomed in
these new spaces.100
If public forum is to operate properly as a positive right, then governments
could be legally held accountable for the way they have contributed to reduce,
or directly eliminate, public spaces. This requires, as Timothy Zick has claimed,
to strongly argue for rights to a place decoupled from property, a truly
independent constitutional concept.101 This means considering a place in
regards to its impact and importance on public discourse, rather than to being a
(physical) thing (res).102 Place, here, rather than a “background for expressive
96
MITCHELL, THE RIGHT TO THE CITY, supra note 8, at 2.
KEMBREW MCLEOD, FREEDOM OF EXPRESSION®: RESISTANCE AND REPRESSION IN THE AGE OF
INTELLECTUAL PROPERTY 226 (2007).
98 Zick, Property, Place, and Public Discourse, supra note 94, at 173 (2006).
99 John Michael Roberts, Public Spaces of Dissent, 2 SOCIOLOGY COMPASS 654, 663-6 (2008)
(explaining how urban developers ‘integrate’ citizens into new solutions in order to pre-empt
dissent, but also how the ‘publicness’ of public spaces is altered “by either opening up or
shutting down access to the public space in question.”).
100 Mitchell, The Liberalization of Free Speech, supra note 66, at 63-4.
101 Zick, Property, Place, and Public Discourse, supra note 94, at 204, 209.
102 Id. at 210.
97
192
activity … is constitutionally bound to expression.”103 However, courts and the
history of Western constitutional thought seem unprepared to displace
property to such a ‘secondary’ position.104
Another alternative to overcome the reduction of public space could be
accepting the ‘sovereignty’ of the State to dispose of its property at will and
having courts recognize the right to protest in these new public fora. In fact, the
focus of the people—forced by circumstances—has also switched from the
traditional public forum to these new, although privatized, city centers (such as
malls, stadiums, concert halls, etc.) It is in these places that attention can be
called. However, courts have not gone as far as to recognize rights to protest in
these forums—which illustrates the second limitation aforementioned.
According to McCarthy and McPhail, vague public forum standards have
become an open invitation to narrow the protection of the right to protest.105
These standards have also proven futile before the privatization of traditional
places of public gathering which are now in the hands of private corporations
or individuals, thus falling within a fourth category where free public transit is
discretionarily restricted (it is restricted at the owner’s will).106 This has been
Id.
Where secondary here stands for a value/right as important as that it has to be balanced
against. See, JEREMY WALDRON, THE RULE OF LAW AND THE MEASURE OF PROPERTY (2012) (arguing
property rights, although relevant and foundational of liberal autonomy, are but one of the
interests a proper constitutional analysis should consider).
105 John McCarthy & Clark McPhail, Places of protest: the public forum in principle and practice,
11 MOBILIZATION: AN INTERNATIONAL QUARTERLY 229, 229-30 (2006).
106 As of today, this is how the scheme of forums looks:
Traditional public fora: where, as noted, content-neutral restrictions might be imposed
if they “aim at the noncommunicative impact of speech … [and are] justified only under
the strictest scrutiny;”
Limited public fora: public property that the government has opened for expressive
activities. Restrictions here are justified under the same lines as traditional public
forum;
103
104
193
reflected in the jurisprudence of “the [United States Supreme] court [that] has
tended to place these newer ‘limited public spaces’ further away from the
traditional public fora, hence allowing greater restrictions to be placed upon
protest in the newer places.”107 As noted above, property regimes have
outbalanced political participation.
When considering its limitations public forum becomes, despite what is usually
stated, a doctrine of negative rights. A doctrine that, echoing liberal economic
metaphors, is aimed at regulating State intervention but not so much—if at
all—a doctrine of positive rights seeking to “assur[e] that marginalized groups
can be heard …”.108 Although the public forum doctrine has proven relevant in
securing the right to protest, it has to be taken cautiously and, in the end,
contended from within.
To prevent assemblies and protests from becoming ritualized events under
current conditions,109 where spaces of political participation are determined by
authorities, “dissent can only be effective when it is illegal.”110 On the one hand,
it is important to acknowledge that keeping public spaces open up for
contestation allows to have and bring different voices in in order to shape and
Nonpublic fora: where restrictions only need to be reasonable;
Private property: excluded from right to protest.
Id. at 230-1. Others have shown that the impact of privatization reaches even individual acts of
expression, including wearing t-shirts with messages that the owners of these ‘new public
places’ consider inappropriate—including the unauthorized distribution of First Amendment
fliers. MCLEOD, FREEDOM OF EXPRESSION®, supra note 97, at 227-8.
107 Id. at 231.
108 Mitchell, Political violence, supra note 68, at 170.
109 Abu El-Haj, The Neglected Right to Assembly, supra note 65, at 546-7.
110 Mitchell, The Liberalization of Free Speech supra note 66, at 47. See also, but labeling it as
civil disobedience, McCarthy & McPhail, Places of protest, supra note 105, at 230 (“The evolution
of the public forum doctrine, then, while conceived in theory to protect the rights of dissidents
to effectively voice their views, has, in practice begun to nudge them toward more civilly
disobedient tactics simply to be heard.”).
194
define
our
constitutional
commitments.111
This
is
what
transforms
constitutions into actual commitments instead of being pure forceful
impositions ready to fall into pieces at the very first actual challenge. On the
other hand, it is also important to notice that protests are not only to be
understood narrowly in the sense that the only permitted protests are those
which police orders allow, but also those that transcend those limits in order to
actualize equality in the public space.112
Some court has taken a step forward in this light. The Audiencia Nacional of
Spain has recently passed a decision on protests held before the doors of the
Catalonia Parlament. While it insisted on the importance of linking protests to
the political speech of silenced and displaced voices (something I highlighted in
the previous chapter), it also reasoned—in light of Mitchell’s ideas—that in a
context of limited expression and access to public space, “mostly controlled by
the private media corporations,”
it cannot be concluded but accepting a certain excess in the exercise of
freedoms of expression and assembly to grant protests any minimum
effectiveness and critique character.113
This is the sense of illegality and excess Mitchell is talking about: a sense of
illegality, although of constitutionality; a sense in which these very acts of
111 As lawyers, Timothy Zick has argued, we should not entertain in urban, environmental or
city planning, but we “must ask whether our legal doctrines of place can accommodate public
discourse given the spatial environment, the places, that we actually have. And if they cannot,”
which seems to be the case, as shown above, “we must consider what changes might be made to
preserve the exercise of fundamental public speech rights.” Zick, Property, Place and Public
Discourse, supra note 94, at 176.
112 Dikeç, Space as a mode of political thinking, supra note 4, at 674.
113 Judgment of Jul. 7th, 2014, Audiencia Nacional, Sentencia No 31/2014, at 57-8 (my
translations). The Tribunal Supremo would later revoke this decision (Judgment of Mar. 17th,
2015, Tribunal Supremo, Sala de lo Penal, Sentencia No 161/2015).
195
dissidence can take law-making institutions to rethink and reconceptualize the
way constitutional rights are to be understood in order to include novel forms
of protests.114 This is, in fact, the history of law itself—the very act of protest
once was illegal.115 Furthermore, this is not an illegality or unruly behavior
aimed at destabilizing the State, rather behavior meant to contest and
(re)shape the fashion in which political liberties are to be understood. As
Mitchell claimed, rights can only be secured through exercise.116
II. Participating without a face117
Social protests take place in the public sphere. In its physical sense—and
certainly in a wider understanding as well—this is a place States watch 24/7.
Surveillance, however, meets with resistance. The image of protesters covering
their faces, whether with a hood, a scarf, a balaclava or, more recently, with
zombie or Guy Fawkes masks the ‘Occupy’ movement popularized, is common
in protests. While this practice might be justified on the grounds that masks
themselves are expressive means that help protesters to portray their claims—
as I shall show below, an argument which may or may not seduce courts—or
114
This is possible, as Zick argues, because public expressive places are not objective
immutable governmental allocations, but are contingent, dynamic and depending, in the last
instance, on the meaning speakers and listeners—a mixture of layperson, authorities, legal
regulations, and contestation of those regulations—impress on them. Zick, Property, Place, and
Public Discourse, supra note 94, at
115 Mitchell, Political violence, supra note 68, at 157.
116 MITCHELL, THE RIGHT TO THE C ITY, supra note 8, at 4-5.
117 I would like to thank my colleague Rodolfo Figueroa who provided insightful critiques—by
posing the right questions—to a previous draft of this section.
196
simply out of some specific circumstances,118 I want to insist on a different, yet
complementary, path. This path requires considering a socially vitalized form of
privacy.
According to the view I will explain, there is a political right to participate in
public without a face; citizens have the prerogative to demand the State refrain
from interfering—in ways subtler than, say, prohibiting assemblies—with the
right to protest. This argument has its basis in privacy protection, but it also
requires us to move forward to consider the social and political dimension of
informational privacy. Informational privacy alludes to portions of information
citizens deem sensible to share in certain contexts (their face when working)
but not in others (their face when protesting). In other words, this view
requires us to move from considering privacy, along with its implications, an
individual right to a societal value.
I explain this argument in more detail in the first section (A) and consider how
it bears specific consequences in helping us to expand our understanding of
protests in the second (B). I then analyze the impact and possible effects this
revitalized conception of privacy has on three practices that usually affect the
right to protest: governmental surveillance, counter surveillance, and the
prohibition of using masks when in public. I will argue that, considering the
social dimensions of informational privacy, States (C) should be restricted in
For instance, when members of the Russian music band Pussy Riot were arrested under
charges of hooliganism motivated by religious hatred, protesters who complained about their
persecution gathered in front of the Russian Consulate in New York. They wore “colored
balaclavas” (as The New York Times reported) to resemble those worn by the members of the
band. In any case, they were arrested and charged with a law dating from 1845 that prohibits
“three or more people to wear masks in public.” Colin Moynihan, Law Banning Masks at Protests
is to be Challenged, N.Y. TIMES, Oct. 22, 2012, at A18.
118
197
using information gathered through surveillance; (D) are to accept counter
surveillance as a means citizens have to scrutinize their actions and enforce
their right to participate; and (E) must refrain from banning challengers from
wearing masks during protests.
A. From privacy to contextual integrity
In their very much-quoted piece Samuel Warren and Louis Brandeis argued
privacy was better understood (and legally protected) as “a more general right
of the individual to be left alone … of an inviolate personality.”119 This is a right,
they argued, “as against the world.”120 For this reason the right ceased as soon
as the individual publicized the facts or consented to their publication.121 The
very acts of the person also speak for the person. Whereas there are those—to
insist with Warren and Brandeis—who have “in varying degrees … renounced
the right to live their lives screened from public observation,”122 there are
others who live exactly in the opposite way.
Is it not then an oxymoron to claim privacy in public spaces? Not really. Privacy
has long ceased to be a right attached to space; rather, it has become a matter of
control of information and expectations.123 Privacy, therefore, is no longer
confined to the intimate and personal spheres, but also encompasses
119
Samuel Warren & Louis Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 205 (1890-1891).
Id. at 213.
121 Id. at 218.
122 Id. at 215.
123 In fact, it has been argued that the opposite is true; public space is no longer attached to the
State (in the formal sense) and therefore is not spatialized. Quite the contrary, public space is
spatially undifferentiated today. Neil Smith & Setha Low, Introduction: The Imperative of Public
Space, in THE POLITICS OF PUBLIC SPACE 1, 5 (Setha Low & Neil Smith eds., 2006).
120
198
information (available about us) in the public realm.124 This is so because
“privacy norms are not necessarily derivable from setting but can come
prior.”125 As Julie Cohen has convincingly argued against what she calls the
liberal approach to privacy, the self is culturally and socially situated, and
therefore communally and communicatively shaped.126 While places are
elements that help frame these contexts, they are not the only, nor even the
most important, elements, as has been correctly suggested. This is so because
our lives occur in and we do things in places, and our lives also take place
within certain “politics, convention[s], and cultural expectation[s].”127
Privacy, thus, cuts across a universe of overlapping realms where the (simple)
private/public
distinction cannot
automatically account
for
what
is
private/public. According to Nissenbaum,
We do not have a dichotomy of two realms but a panoply of realms;
something considered public in relation to one realm may be private in
relation to another …128
In fact, the texture of people’s lives shows we “cross[] dichotomies … move[]
about, into, and out of a plurality of distinct realms.”129 What best accounts for
privacy therefore is this multiplicity of realms, relations, and norms governing
roles, expectations, behaviors, and limits within.130 Precisely because privacy
“enabl[es] individuals to maintain contextual integrity,” that is, distinct
124 Helen Nissenbaum, Toward an Approach to Privacy in Public: Challenges of Information
Technology, ETHICS & BEHAVIOR 207, 212 (1997).
125 Id. at 214.
126 Julie E. Cohen, What privacy is for, 126 HARV. L. REV. 1904, 1905-08 (2013).
127 Helen Nissenbaum, Privacy as Contextual Integrity, 79 WASHINGTON L. REV. 119, 137 (2004).
128 Nissenbaum, Toward an Approach to Privacy in Public, supra note 124, at 215.
129 Nissenbaum, Privacy as Contextual Integrity, supra note 127, at 137.
130 Id. at 138.
199
relationships with different people, information we deem “appropriate in the
context of one relationship may not be appropriate in another.”131
Contextual integrity (and not the spatial focus) better explains how privacy
contributes to our identity and individuality132—and it also helps us
understand why privacy is rooted in public relations rather than in solitude and
against the world. Actually, privacy is the “relief from a range of kinds of social
friction.”133 In fact, privacy permits the interplay between selfhood and social
shaping—rendering these two concepts mutually reinforcing.134 This is
possible thanks to privacy’s dynamism, for privacy is not a fixed concept that
takes place in just one realm, but “an interest in breathing room to engage in
socially situated processes of boundary management.”135 When we lack
privacy, we lack this valve that allows the autonomous, although not totally
isolated, definition of the self. Privacy, thus seen, ensures that “the development
of subjectivity and the development of communal values do not proceed in
lockstep.”136
This approach allows to understand privacy beyond its individual right
carapace and to highlight its other benefits. In other words, this permits
comprehending the value of privacy as a right of the citizen. We care about
protecting privacy not solely, if at all, because it is an individual right, but
because harms on privacy “affect the nature of society and impede individual
Nissenbaum, Toward an Approach to Privacy in Public, supra note 124, at 216.
ALAN F. WESTIN, PRIVACY AND FREEDOM 34 (1967).
133 Daniel J. Solove, A Taxonomy of Privacy, 154 UNIVERSITY OF PENNSYLVANIA L. REV. 477, 484
(2006).
134 Cohen, What privacy is for, supra note 126, at 1909.
135 Id. at 1911.
136 Id.
131
132
200
activities that contribute to the greater social good.”137 Seen in this way, privacy
constitutes both, rather than tears apart, individuals and community.138
This also holds true in a comparative constitutional perspective. In fact, the
core of privacy has been conceptualized as going “beyond the idea of privacy as
seclusion and as a shield from intrusion and unwanted gaze.”139 Whereas
privacy still has a value for those wanting to be left alone, undisturbed both in
their existence as well as in their personal details, it has also come to be
understood as “a right to define and construct one’s own identity, not only in
isolation but in social relations.”140 Privacy “protects people, not places.”141
How could this socially infused version of privacy benefit protesters? Is privacy
a concern for protesters at all? Amid massive student demonstrations in Chile
between 2011 and 2013, where isolated misdemeanors had been committed
against property and members of the police, then-President Sebastián Piñera
claimed the need to grant police the power to conduct preemptive identity
verifications against those taking part in protests.142 This, he argued, would
prevent crimes and vandalism.143 What was is his reasoning?
137
Solove, A Taxonomy of Privacy, supra note 133, at 488.
Id. at 488-9.
139 Manuel Cepeda, Privacy, in THE OXFORD HANDBOOK OF COMPARATIVE CONSTITUTIONAL LAW 966,
supra note 45, at 969.
140 Id.
141 Id. at 971. As the Supreme Court of the United States stated in Katz v. United States, 389 U.S.
347, 351 (1967).
142 Presidente Piñera firma proyecto de ley que permite control preventivo de identidad [President
Piñera files a bill that will permit preventive identity verifications], EMOL.COM, Jul. 10, 2013,
available at http://www.emol.com/noticias/nacional/2013/07/10/608364/presidentepinera-firma-proyecto-de-ley-que-permite-control-preventivo-de-identidad.html
143 Id.
138
201
If you have nothing to hide, you have nothing to fear. Only those aimed
at committing crimes will feel offended by this legislation.144
As professor Solove has observed, there is a false tradeoff involved when
people—protesters included—are asked not to fear if they have done nothing
wrong, for, as he points out, this argument attaches little value to privacy.145
First, it is uncommon that no one has anything to hide.146 Second, it is
absolutely wrong to suggest privacy is about hiding bad things.147 Most of the
time privacy works to protect totally legal actions. Moreover, encroachment of
privacy actually may prevent legal actions—such as joining a demonstration.148
Third, it is also misleading to exclusively see privacy as secrecy. As noted above,
privacy protects a myriad of situations, which include some forms of secrecy.149
Governmental public observation, for instance, is problematic even when the
information it collects is not something the people may have wanted to hide.
The pernicious effect of these forms of privacy invasion, which include
governmental public observation and citizen identity control, is the “suffocating
powerlessness and vulnerability” the use of personal data creates.150
144
Id. Piñera’s Minister of Interior had previously justified a prohibition to attend protests with
masks on the same grounds. His reasons? “In our … country you cannot mask yourself to
commit vandalism, protests are to be attended with clean hands and to attend with clean hands
is to attend with your face uncovered.” Gobierno anuncia reforma legal para prohibir
encapuchados en manifestaciones [Government announces legal reform to prohibit masked
protesters], NACION.CL, Aug. 13, 2011, available at http://www.lanacion.cl/gobierno-anunciareforma-legal-para-prohibir-encapuchados-en-manifestaciones/noticias/2011-0813/132238.html (my translation).
145 DANIEL J. SOLOVE, NOTHING TO HIDE: THE FALSE TRADEOFF BETWEEN PRIVACY AND SECURITY 21
(2011).
146 Id. at 23-4.
147 Id. at 26-7.
148 Id. at 27.
149 Id.
150 Id.
202
In other words, as it has been aptly observed, privacy protects forms of harm
“involved beyond exposing one’s secrets to the government.”151 We value
privacy not because it permits us to hide things, but because—as observed
before—it enables us to move in a series of realms feeling empowered to do so.
Therefore, for protesters the force of privacy stems precisely from the fact they
have done nothing wrong, unless you consider it wrong (either constitutionally
or legally) to publicly shout your grievances.
B. Harms to protests
From here it is possible to see further, more specific, implications for the right
to protest. The harms a socially infused understanding of privacy should
protect us against, as explained before, can only be aptly grasped when
considering privacy to be a citizen right. Here the right is completely
reconfigured. As Honneth has argued, these are rights whose structure invites
and enables civil engagement. They allow the people to become authors
(democratic citizens) of their political fate through the cooperative task of
democratic will-formation.152 These rights, in other words, “enable subjects to
do what they could not do alone and in a stance of individual retreat.”153 This is
the case, for instance, of the right to vote. A “seemingly individualistic right to
151
Id. at 29.
AXEL HONNETH, FREEDOM’S RIGHT. THE SOCIAL FOUNDATION OF DEMOCRATIC LIFE 79 (Joseph Ganahl
trans. Columbia University Press 2014). Of course, it can also be a subjective right that enables
individuals to retreat and conduct inner examination “in order to explore the meaning and aims
of their individual lives” (Id. at 72). At any rate, Honneth insists that that very subjective space
where individuals examine their own lives has been ethically shaped. In other words, the legal
freedom individual rights permit depends on the content of these rights being defined from
outside the rights. The same applies to privacy: “individuals can only exercise their legally
guaranteed right to privacy if they can rely on the communicative background of a lifeworld
that itself has not come as a result of legal processes” (Id. at 85-6).
153 Id. at 259.
152
203
vote” cannot be properly understood unless we consider it a citizen’s
prerogative, the citizen being a member of the democratic community.154
Solove concurs. Instead of protecting individuals at the expense of society,
privacy “should be justified by its social benefits.”155 It is the contribution to the
greater social good, and certainly its contribution to citizenship, what should
guide our understanding of privacy. “It is hard to imagine,” Solove writes, “how
people could freely participate in public life without some degree of control
over their reputation and private life.”156
In the specific case of protests, therefore, what should trouble us are the harms
that could affect the people’s willingness to join others and thus take an active
part in political life. In fact, these are forms of harm that lead people to
withdraw their intervention in public opinion shaping activities—such as
protests. As a general matter, many privacy problems indeed involve the “risk
that a person might be harmed in the future.”157 This risk includes direct
attacks such as dignitary, monetary and physical harms.158 It also affects a
person’s life by preventing him or her from engaging in activities that he or she
would otherwise join.
Solove, for instance, writes, “[p]eople’s behavior might be chilled, making them
less likely to attend political rallies or criticize popular views.”159 Nissenbaum
holds a similar notion. For her, privacy in public becomes relevant to secure
both political autonomy and freedom. Where there is absolutely no restriction
Id. at 260.
DANIEL J. SOLOVE, UNDERSTANDING PRIVACY 91 (2008).
156 Id. at 93.
157 Solove, A Taxonomy of Privacy, supra note 133, at 487-8.
158 Id. at 488.
159 Id.
154
155
204
in access to personal information critical reflection may shrink. Certain spaces,
in fact, are crucial to provide the people with freedom to “experiment, act, and
decide without giving account to others of being fearful of retribution.”160 When
the people are freed from what others will judge, say or react, they obtain the
necessary inhibition to think about, propose, discuss, hold, and revise “the
reasons behind significant life choices, preferences, and commitments.”161 This
is what Simmel called the phenomenon of the stranger, a sociological liberation
that permits specific forms of interaction in liberty:
the objective individual is bound by no commitments which could
prejudice his perception, understanding, and evaluation of the given. (…)
he is freer, practically and theoretically; he surveys conditions with less
prejudice; his criteria for them are more general and more objective
ideals; he is not tied down in his action by habit, piety, and precedent.162
Still, Cohen argues that unconstrained and unchecked surveillance affects both
an essential condition to define ourselves and our capacity of selfgovernment.163 Surveillance permits the burgeon of what Cohen terms
‘modulated democracy,’ a form of democracy, if at all, where our decisions are
molded from the outside.164 Citizenship, therefore, is crucially affected, for the
scope of these practices, which include voting, public debates and other forms
160
Nissenbaum, Privacy as Contextual Integrity, supra note 127, at 148-9.
Id. at 149.
162 Georg Simmel, The Stranger, in THE SOCIOLOGY OF GEORG SIMMEL 402, 402-5 (Kurt H. Wolff
trans. & ed. The Free Press, 1950) (1908). I have taken links between Simmel’s The Stranger
and privacy from WESTIN, PRIVACY AND FREEDOM, supra note 132, at 31-2.
163 Cohen, What privacy is for, supra note 126, at 1912.
164 Id. at 1915 (defining modulated democracy as “a set of processes in which the quality and
content of surveillant attention is continually modified according to the subject’s own behavior,
sometimes in response to inputs from the subject but according to logics that ultimately are
outside the subject’s control”).
161
205
of political participation, “will be defined in part by the practices that existing
institutions encourage, permit, or foreclose.”165 Technology, particularly
networked information technologies, helps to shape those practices by allowing
some interventions and rejecting others, thus crucially determining our
capacity for democratic self-government.166
As Solove highlights, this more comprehensive approach to privacy is not only
concerned with the harms the person may directly feel, but also with a larger
harm—that sometimes occurs unnoticed—affecting society:
Constitutive privacy understands privacy harms as extending beyond
the “mental pain and distress” caused to particular individuals; privacy
harms affect the nature of society and impede individual activities that
contribute to the greater social good.167
When someone is prevented, because of disturbances on his or her privacy,
from sharing his or her voice so as to shape public opinion, it is not only he or
she who is affected. All of us are affected—and along with us, our constitutive
commitments whose contours are determined for an exclusive set of voices.
Of course, as in the cases of other aforementioned rights, the State is both an
ally and a foe to privacy.168 In fact, privacy’s constitutive aspects requires the
State to refrain from impinging privacy (where privacy turns out to be largely a
negative right) and to also take positive measures allowing the “autonomous
Id. at 1912.
Id. at 1913.
167 Solove, A Taxonomy of Privacy, supra note 133, at 488.
168 Thus, regulation of both private and public realms responds to specific power relations in
society which also happen to shape the State, just as “many of the state’s actions do indeed
mold and frame what specific societies take to be the public” and, we should add, private. Smith
& Low, The Imperative of Public Space, supra note 123, at 5.
165
166
206
shaping of individual identity.”169 Indeed, privacy “enables people to engage in
worthwhile activities in ways that they would otherwise find difficult or
impossible”170—activities which certainly include our right to participate in
political matters without the fear of losing our job, being presented as violent,
being criminally persecuted, “community shunning, and other social
reprisals.”171
I now turn the focus to three specific issues related to social protests:
governmental surveillance; the natural counterpart of this surveillance, that is,
citizens’ data collection of governmental, particularly police, behavior; and
different means by which protesters seek to conceal their identity when
protesting.172
C. Surveillance
“Power, whether in the form of elites, government policies, or innovations in
built environments, can override the speech of the city,”173 Saskia Sassen has
argued. She has also identified one such government policy: large-scale
surveillance systems which have had the effect of turning everyone into
169
Id. at 970.
Solove, Taxonomy of Privacy, supra note 133, at 484.
171 Daniel J. Solove, The virtues of knowing less: justifying privacy protections against disclosure,
53 DUKE L. J. 967, 995 (2003).
172 I am interested here in explaining the right to protest. This is why I will not stop at analyzing
how the right to privacy can, at times, work as a limit on protests, as it has occurred for access
to abortion clinics. Richard Albert, Protest, Proportionality, and the Politics of Privacy: Mediating
the Tension between the Right of Access to Abortion Clinics and Free Religious Expression in
Canada and the United States, 27 LOY. L.A. INT’L & COMP. L. REV. 1 (2005) (explaining both
jurisdictions have privileged the right of access to abortion clinics). Privacy has also been
suggested as a limit on funeral picketing. Njeri Mathis Rutledge, A time to Mourn: balancing the
right to free speech against the right of privacy in funeral picketing, 67 Maryland L. Rev. 295
(2008) (arguing privacy should be considered an important interest that the State should
protect before unwanted protests in funerals).
173 Sassen, Does the City have a Speech?, supra note 7, at 219.
170
207
possible suspects,174 transforming a vibrant civil society into an uncivilized
one.175 As I show here, this constant monitoring (due to a government’s
suspicion of all people) should be observed as a serious disturbance on the
right to protest.
Why does surveillance affect protesters and their right to demonstrate? After
all, as some have suggested, protests occur in the public realm; therefore,
participants should assume they are to be observed. I have already argued that
privacy extends to public areas such as streets and squares, and also that
privacy covers legal, as well as regular, daily actions taking place is these areas.
With these considerations in mind I now turn to show specifically how
surveillance undermines the right to protest.
Governmental surveillance of protests takes many forms, two of which I will
name. For one, governments gather information by means of massive
surveillance carried out by cameras located throughout cities. After all, we live
in a ‘Cam era.’176 Governments also watch through policing. This latter form of
surveillance is directly done by police agents who carry portable cameras as
well as other devices.
There are several reasons why surveillance is detrimental to protests. These
reasons stem mainly from the enriched conception of privacy (in public) that
was depicted above. First, surveillance can take citizens to self-censorship by
Id. at 220.
DAUVERGNE & LEBARON, PROTEST INC., supra note 83, at 75-7 (“Suppressing social movements
by isolating and delegitimizing groups as extremists and terrorist is a more insidious process of
control than mere repression—one that, as many states know well, can be a highly effective
way to divide and conquer opposition.”).
176 Hille Koskela, ‘Cam Era’ – the contemporary urban Panopticon, 1 SURVEILLANCE & SOCIETY 292
(2003).
174
175
208
avoiding (public) places and practices where, for whatever reason, they don’t
want to be seen.177 Second, surveillance limits freedom and autonomy by
permitting the State to have a record of our past actions and omissions, which
compromises our anonymity.178 This constraint on freedom, as Solove shows, is
particularly potent for people engaging in political protests or dissent of
accepted norms,179 for people captured on film in such activities might “face
persecution, public sanction, and blacklisting for their unpopular political
beliefs.”180 Moreover, these retributions regularly target disfavored groups and
causes.181 Sadly, this is far from pure academic speculation. As recently
reported, the Russian Federation makes “‘propaganda of non-traditional sexual
relations’ … punishable by administrative fines,”182 propaganda which includes
parades and other public gatherings. From a more historical perspective, some
research has shown governmental surveillance has been directed precisely at
exposing, disrupting, misdirecting, discrediting, and neutralizing social
mobilizations seen as undesired.183 Finally, massive surveillance technologies
allow the State to gather an amount of information absolutely disproportionate
177
SOLOVE, NOTHING TO HIDE, supra note 145, at 178.
Id. 178-9.
179 Id. at 179.
180 Id.
181 Id. This might be explained by that fact that, in the end, as some have put it, technology
hardly presents a new start, but “are extensions of existing practices … the old wine of existing
processes and practices is normally presented via the new bottles of technological delivery.”
Pete Fussey & Jon Coaffee, Urban spaces of surveillance, in ROUTLEDGE HANDBOOK OF SURVEILLANCE
STUDIES 201, 207 (Kirstie Ball et al. eds. 2012).
182 Human Rights Council, Report of the Special Rapporteur on the rights to freedom of peaceful
assembly and of association (Maina Kiai), A/HRC/26/29. April 14, 2014, at para. 31.
183 Amory Starr et al., The impacts of State Surveillance on political assembly and association: a
socio-legal analysis, 31 QUAL SOCIOL 251, 253 (2008). See also, Solove, Taxonomy of Privacy,
supra note 133, at 496 (showing that surveillance the FBI directed against Martin Luther King,
Jr. was aimed at showing his communist ties; whereas surveillance failed to ‘discover’ those
ties, it ended up revealing King’s extramarital affairs).
178
209
with the objective originally sought (i.e. prevent crime).184 This permits the
State to develop large repositories of information then used to target
disfavored groups or dissident voices with whatever minor infraction they
could pull from that gathered data.185
In the end, these forms of protest surveillance have the effect of seriously
constraining, if not directly eliminating, political dissent.186 By promoting
anxiety and discomfort,187 massive surveillance takes, or may take, people to
conform their behavior and views—including those views about how to better
understand our constitutional commitments—to mainstream ideas.188 In fact,
modulation, which surveillance facilitates, is a form of privacy that produces
particular kinds of subjects whose consent is manufactured and directed both
in markets and politics.189 Whereas democracy needs discomfort to have
citizens constantly engaged in pursuing “political and social ideals,”
surveillance and modulated democracy deprives citizens of the means, and
SOLOVE, NOTHING TO HIDE, supra note 145, at 179-81.
Id. at 181.
186 This does not mean that all encroachments on privacy seek the same result. Large
corporations, combined with the easiness with which Internet search engines trade personal
information, actually want the opposite: “to know our every desire, confident that we can be
pleasured into submission.” GARRET KEIZER, PRIVACY 6-7 (2012). The way in which Internet
search engines set individualized profiles for each and every one of us, together with
corporations buying these profiles and news media companies offering the same ‘service’—so
you can read exactly what you want to read by snipping away every other opinion that counters
yours—likewise affects the fashion in which our public and communal agreements are
constructed, as well as the basis of our society. CASS R. SUNSTEIN, REPUBLIC.COM 7-10, 14-5 (2001).
Julie Cohen has also called attention against the sort of sovereignty private corporations enjoy
at the time of freely modeling individuals’ lives. This mistreatment of privacy affects
“democratic citizenship, innovation, and human flourishing …”. Cohen, What privacy is for,
supra note 126, at 1927-32 (criticizing what she terms ‘informational capitalism’ and calling for
new regulations that uphold privacy concerns of individuals).
187 Solove, Taxonomy of Privacy, supra note 133, at 493 (“Because of its inhibitory effects,
surveillance is a tool of social control, enhancing the power of social norms, which work more
effectively when people are being observed by others in the community.”).
188 Id. at 494.
189 Cohen, What privacy is for, supra note 126, at 1917.
184
185
210
probably the desire, to practice this sort of contestation—“this sort of
citizenship.”190
Moreover, we have to consider that, although today it is a common knowledge
that cameras are constantly watching us, one of the few unexplored
components of surveillance is ‘unverifiability.’191 This means that citizens,
despite having a general sense of being watched, do not know whether they are
actually being observed. It is precisely that general sense of being under
surveillance where governmental power resides, for whereas actual watching
might be sporadic, “‘the threat of being watched never ceases’.”192
A likely result of this internalization of control193 is that people are prevented
from suggesting new visions. This is because experimentation requires a
certain level of privacy, that is, the assurance there will be no retribution.194
This chilling effect on dissent affects not only ideas, but also one of the most
effective means, and to some the only available means, of political participation:
popular reunions and assemblies. Constant surveillance may take people to
avoid joining others, a burden particularly felt by disadvantaged or minority
groups.195 As some empirical data shows, surveillance may take people to
Id. at 1918.
Koskela, ‘Cam Era’, supra note 176, at 298.
192 Id. (citing Matt Hannah).
193 Id. at 299 (“People internalise the rules, regulate their own behaviour even when it is not
necessary and, thus, exercise power over themselves. Power operates by creating ‘bad
conscience’.”). See also, Cohen, What privacy is for, supra note 126, at 1916 (“In the modulated
society, surveillance is not heavy-handed; it is ordinary, and its ordinariness lends it
extraordinary power.”).
194 Nissenbaum, Privacy as Contextual Integrity, supra note 127, at 148-9.
195 Solove, Taxonomy of Privacy, supra note 133, at 499 (“Espousing radical beliefs and doing
unconventional things takes tremendous courage; the attentive gaze, especially the
government’s, can make these acts seen all the more daring and their potential risks all the
more inhibitory.”).
190
191
211
withdraw from groups and seek more individualistic forms of participation;196
it also impacts the organizational basis of movements197 and, in the end, the
culture of protest itself.198
This, however, remains a disputed territory in courts. Some of them, like the
courts in the United States, have held citizens do not have a reasonable
expectation of privacy in public. Although in Katz the Court declared that
privacy protects people rather than places,199 it has never really left the secrecy
paradigm—as Solove has termed it.200 This paradigm consists of understanding
privacy in very a narrow fashion: something is private, and is therefore granted
constitutional protection, “only if it is completely secret.”201 In California v.
Ciraolo, for instance, the Court held a person had no reasonable expectation of
privacy, even when in his backyard, against a governmental “observation from
a public vantage point where he has a right to be and which renders the
activities clearly visible.”202 This vantage point was possible thanks to a police
helicopter flying over the claimant’s home. Therefore, to claim the protection of
one’s privacy, people must act as reasonable paranoids, that is, take every
imaginable step to prevent exposition to the public eye.203
196
Starr et al., The impacts of State Surveillance, supra note 183, at 255.
Id. at 258-60 (showing surveillance generates reluctance to participate and thus “impacts
donations to organizations, numbers of participants in events, willingness to sign petitions and
public statements, volunteering, and receipt of newsletters and other educational materials
normally sent to members.”).
198 Id. at 261-3.
199 Supra note 141.
200 SOLOVE, NOTHING TO HIDE, supra note 145, at 93-101.
201 Id. at 94.
202 476 U.S. 207 (1986).
203 See a description of how a reasonable paranoid would behave in Elizabeth Paton-Simpson,
Privacy and the reasonable paranoid: the protection of privacy in public places, 50 U. TORONTO L.J.
305, 305-6 (2000).
197
212
In Canada, the Supreme Court previously held a property approach which it
later abandoned to adopt its own version of reasonable expectations of
privacy.204 In Hunter et al. v Southam Inc., it held, just as the United States
Supreme Court did in Katz, that privacy protected persons, not places.205
However, the standard has also proven futile in protecting privacy rights in
what are normally seen as public spaces. Whereas some commentators have
noted Canadian courts seem more willing—at least when compared with courts
in the United States—to protect some forms of privacy in public,206 overall
matters are more or less the same. In United Food and Commercial Workers,
Local 401 v. Alberta, the Supreme Court of Canada decided whether a picketing
union had the right to record individuals crossing the picket line. Individuals
recorded by the union claimed their privacy rights were infringed. The
Supreme Court dismissed these privacy concerns. It found the union to be
exercising ‘journalistic’ powers as granted in the relevant legislation (Personal
Information Protection Act, PIPA) and therefore considered the union had
engaged in expressive activities. The Court also held the following:
Kate Murray, The ‘reasonable expectation of privacy test’ and the scope of protection against
unreasonable search and seizure under Section 8 of the Charter of Rights and Freedoms, 18
OTTAWA L. REV. 25 (1986) (arguing the Canadian version of the test has several differences with
the one adopted in the United States).
205 [1984] 2 S.C.R. 145, at 159. However, the Court was not so quick to admit the people lose
their privacy rights once in public. See, Derek Lai, Public video surveillance by the State: Policy,
Privacy legislation, and the Charter, 45 ALTA. L. REV. 43, 66 (2007) (distinguishing Katz, depicted
as “an American rather than a Canadian viewpoint,” from Hunter).
206 Paton-Simpson, Privacy and the reasonable paranoid, supra note 203, at 318 (analyzing the
trend in the early 2000s and suggesting “there are signs that Canadian courts may be more
open to the notion of public privacy.”); Lai, Public video surveillance by the State, supra note 205,
at 67 (“current Charter jurisprudence does suggest that Canadians retain a reasonable
expectation of privacy in what they expose in public”), although the decisions Lai analyzes, as
he acknowledges, deal with “surreptitious video surveillance in a private place” (Id.).
204
213
I agree that the complainants had no reasonable expectation of privacy.
They were at not just a public place, but a public demonstration with
important political and social implications. There is no rational
connection between protecting privacy when the individuals in question
are in public view. There is no right to “practical anonymity.”207
It is true that the Court was dealing with private individuals and not with
governmental officers, but it is important to highlight that it understood there
is no such thing as a reasonable expectation of privacy when in public places.208
In fact, as it has more recently been suggested, the series of cases regarding
privacy matters which the Supreme Court has heard—besides being related to
admissibility of evidence obtained without judicial warrants—have missed
important
differences
between
being
seen,
watched,
recorded,
and
monitored.209
In Australia, the Victoria Civil and Administrative Tribunal found the police had
sensible reasons to film and take photographs of protesters, even when they
207
United Food and Commercial Workers, Local 401 v. Alberta, [2011] 509 AR 150, at 187.
In Ward, the Ontario Court of Appeals read the Supreme Court case law as securing a right to
privacy even when in public. It held the following:
I take the [Supreme] court to have held that in Canadian society people can reasonably
expect that they can move about on public highways without being identified and
continually monitored by the state. If the state chooses to engage in that kind of
invasive conduct, it must be able to meet the constitutional requirements of s.8. Wise
holds that while the public nature of the forum in which an activity occurs will affect
the degree of privacy reasonably expected, the public nature of the forum does not
eliminate all privacy claims. R. v Ward, [2012] 296 O.A.C. 298, at 313-4.
However, it is worth noticing this standard has been built in the context of criminal
investigations and evidence gathered without judicial warrants. See, Lai, Public video
surveillance by the State, supra note 205, at 70 (arguing that, according to Wise, “any breach [of
privacy] must flow from the subsequent monitoring and/or recording by those cameras,” but
not from the mere fact of cameras being installed in public).
209 Krista Boa, Privacy outside the castle: surveillance technologies and reasonable expectations of
privacy in Canadian judicial reasoning, 4 SURVEILLANCE & SOC’Y 329 (2007) (arguing that the
Court has dismissed reasonable concerns of privacy by overlooking these distinctions).
208
214
were peacefully demonstrating.210 The court held the police can gather and
retain information about protesters for intelligence purposes, no matter how
broadly defined (“it may be useful in future”),211 and that there was no privacy
violation. In order to do so, it held privacy remained unaltered as “no names
were noted down.”212 Following the trend depicted above, it also noted that
“very public activities did not engage (or infringe)” a right to privacy.213
Not all courts have followed the same path. Spain’s Constitutional Court ruled
on the action of police officers who took pictures and recorded images of a
picket of workers who, while holding a strike, were also informing bystanders
about the main causes of a general labor strike. The Court, although resting on
the constitutional right to collective bargaining and strike, held the policed
affected the workers’ labor rights.214 The Court reasoned that, while the police
did not impede the strike,215 their actions were certainly aimed at intimidating
and threatening workers taking part in the strike.216
What should be done then? I argue this socially vitalized version of privacy
should have States acting within more demanding limits as to the information
they are allowed to gather and keep, and certainly controlling the uses the State
can make of that information. The practical answer to State surveillance,
therefore, is not that States should drop every form of public vigilance, but
210
Caripis v. Victoria Police (Health and Privacy), [2012] VCAT 1472.
Id. at para 30.
212 Id. at para 50.
213 Id. at para. 65. Reasoning that this present case cannot be distinguished from Catt—an
English case the tribunal relied on—, it asserted that “the public nature of Mr Catt’s activities
was also important in leading to the conclusion that his right to privacy was not affected by the
gathering and retention of information about him” (para 66).
214 Judgment of Feb. 17, 1998, Constitutional Court, Second Chamber, STC 37/1998.
215 Id. at para. II.5.
216 Id. at para. II.6.
211
215
maintain it within margins that do not unnecessarily threaten the right to
protest.217 Roughly put, this means that for all purposes (even punishing
crimes) the State should consider protesters joining a protest as first-time
attendees, as if they had no protesting past. In fact, it is a common practice of
the police to record and aggregate information of demonstrators, thus creating
protester profiles later used to obstruct their right to protest—for instance, to
conduct preemptive detentions. The means to achieve this objective, again, is
not to drop public surveillance, but to subject a State’s means of gathering
information to stringent standards, such as imposing penalties for abuses
(leaks), the obligation to delete old data, the prevention of ‘mission creep,’ and
judicial overview.218 In other words, governmental surveillance needs to
undergo more effective accountability measures. Indeed, one of the problems of
surveillance is that citizens do not know what information on them is available
at governmental records. In addition, they do not know what pieces of
information have been put together or who is doing that job.219
D. Counter surveillance
Technology cuts both ways. What happens when surveillance is turned against
the watcher? This practice, favored by technology developments in devices
(mostly mobiles) citizens carry, could be seen as a sort of accountability of
217 SOLOVE, UNDERSTANDING PRIVACY, supra note 155, at 187 (arguing activities—such as
surveillance—that affect privacy “are not socially undesirable or worthy of sanction or
prohibition.”).
218 SOLOVE, NOTHING TO HIDE, supra note 145, at 181.
219 Kimberly N. Brown, Anonymity, faceprints, and the Constitution, 21 GEO. MASON L. REV. 409,
435-6 (2014).
216
those in charge of watching us,220 but also as mechanisms of power
contestation that disrupt State surveillance and contribute to identity building
of political actors in the streets.221
Slobogin, for one, has argued that ‘watching the watchers’ is a form—a popular
form, for the situation I am concerned with here—of implementing privacy
rights in public.222 It is, therefore, a form of accountability of what governments
and their agents collect, catalogue and index that is rooted in privacy concerns.
Notice that these citizen practices not only enhance governmental
transparency, but also place the burden of surveillance on the government
itself.223 By doing so, the State, and particularly the police, loses its ability to
“patrol the facts” before public opinion.224 On the other hand, it is also possible
to see these acts of counter-surveillance as forms of political contestation—
‘protests as news,’225 for publicly exposing the policing of protests also signals
how the State reacts before specific demands. The legitimacy of the State is in
this
way
doubly
challenged.226
Technologies,
whose
uses
are
not
predetermined, are thus given a social meaning of resistance.227
220
See generally, Andrew John Goldsmith, Policing’s New Visibility, 50 BRITISH JOURNAL OF
CRIMINOLOGY 914 (2010).
221 Elise Danielle Thorburn, Social Media, subjectivity, and surveillance: moving on from Occupy,
the rise of live streaming video, 11 COMMUNICATION & CRITICAL/CULTURAL STUDIES 52 (2014).
222 Christopher Slobogin, Public privacy: camera surveillance of public places and the right to
anonymity, 72 MISS. L.J. 213, 256, 306-7 (2002-2003).
223 Id. at 307. See also, Stephen Clarke, The Panopticon of the Public Protest: technology and
surveillance, 4 RES COGITANS 4 (2013) (arguing these forms of public control of police behavior
enhance the autonomy of protesters).
224 Goldsmith, Policing’s New Visibility, supra note 220, at 915-6.
225 Chris Geer & Eugene McLaughlin, We predict a riot? Public order policing, new media
environment and the rise of citizen journalism, 50 BR. J. CRIMINOLOGY 1041 (2010).
226 Thorburn, Social Media, subjectivity, and surveillance, supra note 221, at 57.
227 Id. at 59. See also, Peter Ullrich & Gina Rosa Wollinger, A surveillance studies perspective on
protest policing: the case of video surveillance of demonstrations in Germany, 3 INTERFACE 12, 23
217
This ‘forced’ openness pretty much explains why States feel uneasy about these
forms of popular accountability. The police rarely tremble before proceeding to
arrest journalists covering protests228 and, of course, protesters photographing
or recording them.229 This is not just a matter of police practice, but of legal
entitlement as well. For instance, in the United Kingdom counter-terrorist
legislation has been resorted to in order to legally justify detention of those
taking images of the police,230 while in Spain, as well as in other latitudes, a
recent bill is aimed to sanction those who capture images of the police force
without their consent.231
Nevertheless, it is easier here to find courts standing on the side of citizens (and
journalists). Arguably this is because courts have focused on the vigilant role
(2011) (noting socio-technological practices have their own inner dynamics which cannot
prevent ‘unintended effects’ such as counter-surveillance).
228 Arbitrary detentions of journalists have been reported in Chile (Jason Suder, How to be
arrested in Chile without breaking the law, THE HUFFINGTON POST, Jun. 3, 2012, http://
http://www.huffingtonpost.com/jason-suder/chile-freedom-of-press_b_1324547.html), the
United States (In Ferguson, Washington Post reporter Wesley Lowery gives account of his arrest,
THE WASHINGTON POST, Aug. 14, 2014, http://www.washingtonpost.com/politics/in-fergusonwashington-post-reporter-wesley-lowery-gives-account-of-his-arrest/2014/08/13/0fe25c0e2359-11e4-86ca-6f03cbd15c1a_story.html), Greece (Athens riot police beats Photo-reporters,
KEEPTALKINGGREECE.COM (Oct. 5, 2011),
http://www.keeptalkinggreece.com/2011/10/05/athens-riot-police-beats-photo-reporterspcts-video/), Spain (Los periodistas, detenidos y golpeados al cubrir las manifestaciones del 15-M
[Journalists, arrested and beaten while covering 15-M demonstrations], ELMUNDO.ES, Aug. 05,
2011, http://www.elmundo.es/elmundo/2011/08/05/comunicacion/1312558334.html), and
Canada (Under arrest? Tweet it, fast, NATIONALPOST, May. 23, 2012,
http://fullcomment.nationalpost.com/2012/05/23/under-arrest-tweet-it-fast/), to name some
examples randomly selected from the web.
229 Not in vain the United Nations passed a resolution calling States to pay particular attention
to the safety of journalists and media workers covering protests, as well as the safety of
protesters. Human Rights Council, Promotion and protection of all human rights in the context of
peaceful protests, A/HRC/25/L.20. March 24, 2014, paras 8 and 18.
230 Counter-Terrorism Act 2008, § 76.
231 Proyecto de Ley de Seguridad Ciudadana (Texto íntegro) [Public Safety Bill (full text)], EL
HUFFINGTON POST, Jul. 11, 2014, http://www.huffingtonpost.es/2014/07/11/ley-seguridadciudadana_n_5578288.html See also, DAUVERGNE & LEBARON, PROTEST INC., supra note 83, at 65-6
(arguing that, besides the UK, anti terrorist legislation in the US, Canada, Russia, Germany, “and
many other countries” has been resorted to in order to “further criminalizing dissent as states
extend surveillance and detention powers to a wider range of groups.”).
218
citizens play vis-à-vis the State, on citizens’ freedom of expression rights
allowing them to scrutinize public officials, or on the public office of those being
photographed or recorded by citizens. Thus, the Constitutional Court of Spain
held in 2007 that privacy encompasses the protection of an individual’s image
from being captured by others without consent.232 However, it also held that it
was not an absolute right.233 In fact—the Court went on—, the right to control
whether an individual’s image is captured and divulgated cannot rest solely on
the individual’s will, but also on the circumstances where the individual is
placed.234 In certain cases those circumstances may require the individual’s will
be yielded before other considerations, such as when other rights concur (i.e.
freedom of expression) or when there is a public interest involved in capturing
and publishing images.235
Was there any public interest involved in this case? The court held there was.
The case dealt with a newspaper article which, in covering an eviction process
in Madrid, had published photos of police officers involved under the headline
‘violent eviction.’236 To support its argument, the Court cited domestic
legislation which protects image rights and prevents public officials from
recovering damages if pictures are taken when they are performing official
duties in public places.237 These exceptions were taken to constitutional status
when the Court held there was no encroachment on privacy rights when the
Judgment of Apr. 16, 2007, Constitutional Court, First Chamber, STC 72/2007, at II.3.
Id.
234 Id.
235 Id.
236 Id. at I.2.a.
237 Id. at II.3.
232
233
219
photo captures images of (a) a public official (b) exercising his or her duties (c)
in the context of public actions (d) taking place in a public place.238
In Canada, a court in Ontario decided a case involving a police assault of a
photographer who was shooting pictures of a fight between patrons and the
police at a restaurant. The personal assault resulted from the excessive force
the police used in detaining the photographer after having been ordered to stop
shooting pictures. It held that, although police officers were in the middle of a
“volatile situation, faced with a loud, hostile and aggressive crowd,”239 police
have limits as to the use of force they can resort to.240 More crucially, the court
enquired whether the order to stop taking pictures was within police powers.
The court concluded that
unless Mr. Farkas’s [the photographer] presence or actions were
creating a danger to him or others, ordering him to stop photographing
was not a lawful command …241
The court noted the relation between the police, on the one hand, and citizens,
on the other—whether they have or have not committed any offence—, is
imbalanced. Sometimes some light is needed to expose the sensible concern as
to how the police exercise their legal powers. “An officer who conducts himself
reasonably has nothing to fear from an audio, video or photographic record of
his interaction with the public.”242 Furthermore, the court saw the recording of
an interaction with the police as a right to oversee the way in which public
238
Id. at II.5.
R. v. Zarafonitis 2013 ONCJ 570 (CanLII), at para 18.
240 Id. at para 20.
241 Id. at para 24.
242 Id. at para 26.
239
220
powers are being put into practice, a citizen practice that, in the end, plays a
significant role in the maintenance of the Rule of Law.243 “Interference by a
police officer in the public’s exercise of that right,” the court concluded, “is a
significant abuse of authority.”244
In the United States, the 7th Circuit Court of Appeals prevented the enforcement
of Illinois’ eavesdropping statute.245 The statute considered it a felony to audio
record conversations unless all parties involved in the conversation give their
consent. While the government claimed to be protecting the privacy of
conversations, the Court held “that interest is not implicated when police
officers are performing their duties in public places ….”.246 It is worth noting
that the case was presented by the American Civil Liberties Union (ACLU),
which sought declaratory and injunctive relief so that the statute could not be
enforced against their ‘police accountability program.’247 The ACLU argued the
statute violated their free speech rights. The court agreed. First, it held public
243 Id. (“The public has a right to use means at their disposal to record their interactions with
the police, something that many police services themselves do through in-car cameras and
similar technology … The maintenance of that public record plays a significant role in the
maintenance of the rule of law. The existence of this form of objective ‘oversight’ has great
potential to minimize abuses of authority and to maintain peaceable interaction between police
and the citizenry, all of which is very much in the public interest.”).
244 Id.
245 ACLU of Illinois v. Alvarez, 679 F.3d 583, (7th Cir. 2012).
246 Id. at 586.
247 Id. at 588 (“a program of promoting police accountability by openly audio recording police
officers without their consent when: (1) the officers are performing their public duties; (2) the
officers are in public places; (3) the officers are speaking at a volume audible to the unassisted
human ear; and (4) the manner of recording is otherwise lawful. The program will include,
among other things, audiovisual recording of policing at ‘expressive activity’ events—protests
and demonstrations—in public fora in and around the Chicago area.”).
221
recordings used as a means of expression to disseminate information were
included within freedom of speech protection.248
Audio and audiovisual recording are communication technologies, and
as such, they enable speech. Criminalizing all nonconsensual audio
recording necessarily limits the information that might later be
published or broadcast—whether to the general public or to a single
family member or friend—and thus burdens First Amendment rights.249
It was the fact that the statute prevented citizens from freely discussing
governmental affairs, namely the work of public officials in public places, what
seriously compromised free speech rights.250 This fashion in which the court
framed free speech rights can have no other outcome than to highlight the
accountability role the citizenry plays in a democratic society.251 Accordingly,
the statute was seen as restricting a medium of expression “and thus an
integral step in the speech process … it interferes with the gathering and
dissemination of information about government officials performing their
duties in public.”252
Although some of the Court’s paragraphs aforementioned make some
references to public space, it would be completely wrong to suggest free speech
248 Id. at 595. It rested on the Supreme Court doctrine that regulations, and control and
suppression, of speech may operate “at different points in the speech process” (Id. at 596). This
is not, the Court explained, to hold that audio recordings are speech acts themselves, but—
drawing a parallel with other mechanical mediums—that they are integral to the forms of
speech they facilitate (Id. at 596-7).
249 Id. at 597.
250 Id.
251 Id. at 599 (“To the founding generation, the liberties of speech and press were intimately
connected with popular sovereignty and the right of the people to see, examine, and be
informed of their government.”).
252 Id. at 600.
222
rights—as framed here—are to be upheld only in such a space,253 for the
vigilant role the people play also reaches spaces that, while public, are not part
of what the traditional doctrine regards as public fora. Thus, the same stringent
scrutiny—as the one applied in Alvarez—would be applied if a statute
criminalizes the use of mediums of expression in (say) the congress, a court, or
the buildings of the administration.254 The Supreme Court has recently denied
certiorari, leaving the 7th Circuit decision to stand.255
More recently in Spain, a court in Madrid decided a case along the same
matters. A citizen (who claimed to be a free press journalist) was recording two
municipal police agents that were conducting an eviction when they requested
he stop capturing their images. The agents ordered the man to pixel their faces
if he published the material, hit his camera,256 and eventually charged him with
a public order offense. The court dismissed the charge.257 In doing so the court
noted there is no legal prohibition to record public officials in public spaces and
recalled the Constitutional Court decision aforementioned (supra note 232):
privacy and image rights of public officials, when exercising their legal duties in
public places, are yielded in favor of other constitutionally protected rights,
such as the public interest associated with scrutinizing public officials.258
253
What the court did do, however, was dismiss the claim that privacy rights of the police were
involved in the regulations (Id. at 605-6, noticing the police cannot reasonably expect privacy
for conversations in the open).
254 Each of these instances has exceptions. Nevertheless, the police also have exceptions when
conducting undercover operations, operations that are, for the most part, legally regulated or
authorized by a court.
255 133 S. Ct. 651 (2012).
256 Policía golpea la cámara grabando un desahucio, YOUTUBE, (Oct. 9, 2013),
https://www.youtube.com/watch?v=OI6ed7OhQdc
257 Juzgado de Instrucción Madrid, marzo 6, 2014, Recurso 982/2013 (slip
op.).
258 Id.
223
The bottom line here is that these counter surveillance activities are to be
permitted, if not promoted. Counter surveillance allows citizens to uphold their
own privacy rights. As it has been argued, by unveiling questionable practices
counter surveillance may help to moderate or even trigger a cessation of undue
publications or uses of information. Information gathered through counter
surveillance, in fact, could also be used to persecute governmental
responsibilities of those involved, also causing the revision of surveillance
practices.259
E. Masks, hoods and anonymity for protesters
Does informational privacy also play a role in protecting protesters from being
identified? And if so, why would protesters want to remain anonymous? Many
protesters use masks to cover their faces—thus hindering, if not directly
impeding, their identification. This practice has found stringent reaction from
governments. In fact, many governments have reacted by submitting bills or
passing regulations—mostly criminal regulations—prohibiting protesters from
hiding their faces at public demonstrations.260
259
Gary T. Marx, A Tack in the Shoe: neutralizing and resisting the new surveillance, 59 J. OF
SOCIAL ISSUES 369, 384 (2003).
260 Wearing a mask at riot is now a crime, CBS.CA, Jun. 19, 2013, available at
http://www.cbc.ca/news/politics/wearing-a-mask-at-a-riot-is-now-a-crime-1.1306458; Montreal
police use controversial new laws to quell protest, THE GLOBE AND MAIL, May. 23, 2012, available at
http://www.theglobeandmail.com/news/national/montreal-police-use-controversial-newlaws-to-quell-protest/article4204035/; Piñera pone urgencia a ley anti encapuchados y critica a
quienes le “hacen el juego a los terroristas” [Piñera places urgency on anti-mask legislation and
criticizes those playing “the games of terrorists”], NACION.CL, Jan. 13, 2013, available at
http://www.lanacion.cl/pinera-pone-urgencia-a-ley-anti-encapuchados-y-critica-a-quienes-lehacen-el-juego-a-los-terroristas/noticias/2013-01-13/123556.html; Mayores penas para los
violentos en protestas abren el debate en Colombia [Heightened sanctions on violent protesters
open a debate in Colombia], ELPAIS.COM.CO, Sep. 13, 2013, available at
http://www.elpais.com.co/elpais/colombia/noticias/mayores-penas-para-violentos-protestascolombia-abre-debate; Spanish government tones down its controversial Citizen Safety Law,
ELPAÍS.COM, May 28, 2014, available at
224
Whereas preventing crime may be a sound reason for these regulations—
anonymity makes it hard to punish crimes by helping to conceal the identity of
perpetrators261—, my concern is with protesters who are not committing
crimes.262 In other words, I wonder whether this is not an overreaching
response that affects the privacy of the rest of protesters who pacifically concur
to protest (normally the vast majority of them) and still wish to remain
http://elpais.com/elpais/2014/05/28/inenglish/1401272039_980140.html; Outrage as
France become first nation in world to ban pro-Palestine demos, DAILY MAIL, Jul. 18, 2014,
available at http://www.dailymail.co.uk/news/article-2697194/Outrage-France-country-worldban-pro-Palestine-demos.html.
261 However, it should be noted that governments do not seek, although some have tried, to
specifically criminalize the use of masks or hoods, but to facilitate crime persecution. In other
words, as some commentators have suggested for the Canadian case, crime prevention is
satisfied with criminal provisions already available. This further explains the actual objective of
these regulations: to obstruct the exercise of the right to protest. Ban on masks at riots not
needed, MPs hear, CBC.CA, May. 08, 2012, http://www.cbc.ca/news/politics/ban-on-masks-atriots-not-needed-mps-hear-1.1201624
262 We should place a large caveat here. In many cases, as I noted when reviewing the powers
policies are regularly granted with, the decision about when a protester is committing an
offence or a crime is up to the discretion of authorities. Consider legal regulations proposed in
Spain which sanction as a serious offense (with fines of up to €30,000) those who take part in
altering public safety using hoods, helmets or any other objects or clothes aimed at preventing
identification. Las claves del anteproyecto de ley de Seguridad Ciudadana [The key of the Public
Safety draft], EL MUNDO, Nov. 29 2011, available at
http://www.elmundo.es/espana/2013/11/29/52985b7468434195418b4592.html. Protesters
may be wearing, say, hoods, to prevent identification, not with the aim to conceal their
identities in order to commit crimes. However, policing powers are so vague and discretionary
that, as I have noted before, the mere reunion of people or the obstruction of traffic flow may be
considered an alteration of public safety. Whereas the actions remain the same (a public
gathering or the obstruction of traffic), it is literally up to the authorities (the police) to
determine whether there is an alteration of public safety. Therefore, whereas my concern here
is with protesters who concur pacifically to demonstrate, we should not overlook the fact that
the determination of when a protester becomes an offender depends largely on police
discretion and selective enforcement of its public order regulations—and hoods themselves
may play a significant role in causing the police to enforce those regulations. I would also add
that, even where there is judicial control over the acts of the police, it is the very act of the
police that infringes both the right to protest and privacy of protesters. Finally, there might still
be good reason to criticize the criminalization of masks, even when protesters, or anyone else,
wearing masks do so in order to commit crimes. This depends largely on the distinction
between ‘criminal laws’ and ‘general laws’ (which I address below). In the former case—where
the government intervenes upon evidence that those masked have committed a crime or are
intending to commit one—it could be possible to suggest that by preventing individuals from
concealing their identity the State is forcing the perpetrator to self-incrimination. This, of
course, would depend to a large extent on how the right to not self-incriminate is understood.
In the United States, for instance, this right has been understood to protect only compelled
testimony leading to (self) incrimination (Susan W. Brenner, The privacy privilege: law
enforcement, technology, and the Constitution, 7 J. TECH. L. & POL’Y 123, 182-90 (2002)). I would
like to thank Ignacio Castillo and Juan Pablo Mañalich for a valuable exchange of opinions here.
225
anonymous. Despite obvious similitude with surveillance, a restriction on mask
wearing at protests, I want to suggest here, is a complementary assault on
privacy—which happens to have an undesirable impact on freedom of
expression, in addition to causing other harms to individuals.
Is anonymity alien to democracy? Not at all. We cast votes in privacy. This
means that one of the most important rituals in current democracies, a crucial
feature under the liberal view, takes place under anonymity. This also means
that there might be good reasons available to demand anonymity when
politically participating. Secret voting, for instance, was aimed not only at
preventing bribery,263 but also at securing the liberty of voters (citizens) before
political and economic power.264 By securing the secret of the ballot, citizens,
particularly those worst-off who largely depend on governmental economic
assistance, would not be the subject of threats and intimidation by political
power.265 Their social and material inequality, to put it in other words, would
not translate into political disparities.266 The anonymity citizens enjoy in the
voting booth, seen in this light, amounts to “political privacy,”267 a
constitutional guarantee that they would be able to participate by “vot[ing]
263 But see, Simeon Nichter, Vote buying or turnout buying? Machines politics and the secret
ballot, 102 AM. POL. SCI. REV. 19 (2008) (arguing bribery can still take, and actually takes, place
in face of secret voting).
264 This, however, has not always been an undisputed reason. In 1840s England, for instance,
some saw secret voting—in an impressive resemblance with today’s critique of protesting with
covered faces—as “a mask on an honest face.” NADIA URBINATI, MILL ON DEMOCRACY: FROM THE
ATHENIAN POLIS TO REPRESENTATIVE GOVERNMENT 105 (2002).
265 ANDREW REEVE & ALAN WARE, ELECTORAL SYSTEMS: A THEORETICAL AND COMPARATIVE INTRODUCTION
111 (1992).
266 Richard L. Hasen, Vote Buying, 88 CAL. L. REV. 1323, 1329-30 (2000).
267 EDWARD J. BLOUSTEIN, INDIVIDUAL AND GROUP PRIVACY 152 (1978).
226
according to their best judgment, rather than to avoid political ostracism or
penalty, or to seek approval of favors …”.268
This is where the socially infused understanding of privacy calls us to look at
the social goods which the protection of privacy seeks to further. Daniel Solove,
who argues that privacy, rather than being defined in a single concept, is to be
understood as a cluster of problems that create harms to individuals and
society,269 notes there are many situations where privacy-as-anonymity is to be
protected. This is particularly the case before relationship harms, vulnerability
harms, power imbalances, and chilling effects.270 Continuous monitoring, for
instance, can contribute to create, if not directly to provoke, anxiety and
discomfort, causing individuals to alter their behavior and self-censorship.271
The same may occur with identification—the very objective that mask bans are
aimed at obstructing—which links actual individuals to a baggage of
information.272
As Solove argues, all these harms are better understood when we see them not
as forms of injuries to particular individuals, but as forms of harm that
contribute to generate what he terms ‘architectures of vulnerability.’273 These
are “designs or structures for the processing of personal information that make
people vulnerable to a host of dangers.”274
268
Id.
269 SOLOVE, UNDERSTANDING PRIVACY, supra
note 155.
Id. at 176-8.
271 Solove, A Taxonomy of Privacy, supra note 133, at 493.
272 SOLOVE, UNDERSTANDING PRIVACY, supra note 155, at 122-4.
273 Id. at 178.
274 Id.
270
227
Anonymity brings important benefits against these structures of vulnerability;
anonymity allows individuals to be protected from bias, feeling free and safe to
speak and associate without harm of (a large array of possible) reprisals.275
This is quite a relevant concern once we realize these harms are particularly
burdensome on unpopular and vulnerable groups. By prohibiting anonymity
minorities feel their liberty is taken away and that they are forced to conform
to mainstream ideas.276 A couple of years ago a Chilean media corporation
warned its employers not to take part in labor protests that are held yearly to
commemorate International Worker’s Day on May 1st. They were told that if
they did, they would be fired. Many of them disregarded what they saw to be an
arbitrary command and proceeded to demonstrate. As they were marching in
front of the newspaper’s offices, they glanced at the human resources officer
taking pictures of them. They filed an amparo laboral277 claiming their freedom
of expression and assembly had been threatened.278 For them, covering their
faces would not have been a matter of breaking the law, but a security measure
to keep their jobs. The same is the case of various minorities in different
jurisdictions that have been prevented from wearing masks and hoods when
peacefully demonstrating. The U.N. Human Rights Council expressed its
preoccupation with this situation, calling States to consider the condition of
275
Solove, A Taxonomy of Privacy, supra note 133, at 515.
Slobogin, Public privacy, supra note 222, at 240-42.
277 A judicial writ filed before Labor Tribunals to secure the exercise of constitutional rights.
278 A labor court found workers had a right to demonstrate and to receive legal protection,
particularly considering the protest in which they were taking part involved political speech. A
Court of Appeals overturned the decision; it held it cannot appreciate how the mere fact of
taking pictures could pose an actual and effective violation of the constitutional freedom of
expression. Protesta social y derechos humanos [Social protest and human rights], in INFORME
ANUAL SOBRE DERECHOS HUMANOS EN CHILE 2010 [ANNUAL REPORT ON HUMAN RIGHTS IN CHILE 2010]
74-6 (2010).
276
228
minorities for whom covering their faces is the means to prevent violence and
escape retaliation.279
Is it a contradiction to demonstrate and conceal one’s identity? After all,
protests take place on the streets, before many eyes—including those of the
very bystanders protesters seek to convince. Alan Westin argued that there is a
specific shape the right to privacy takes when exercised among a larger group,
that of becoming a condition of anonymity or reserve.280 Anonymity therefore
takes place even when the individual “is in public places or performing public
acts,” for there he or she may still want to seek, and multitudes normally
permit, “freedom from identification and surveillance.”281 Of course this is not
an absolute right; you cannot claim anonymity to prevent being prosecuted for
a crime committed either in public places or at home. On the other hand,
individuals are also (almost naturally) inclined to participate in society.282 At
any rate, the decision to participate in society in an (un)anonymous fashion is
an individual and autonomous one. It is the individual who is “continually
engaged in a personal adjustment process in which he balances the desire for
privacy with the desire for disclosure and communication of himself to others
…”.283
279
The Council convincingly noted that these prohibitions seem to target particular vulnerable
groups. Human Rights Council, Report of the Special Rapporteur 2014, supra note 182, at paras.
32-3.
280 WESTIN, PRIVACY AND FREEDOM, supra note 132, at 7 (1967).
281 Id. at 31.
282 Id. at 7, 31 (“In this state the individual is able to merge into the ‘situational landscape.’
Knowledge or fear that one is under systematic observation in public places destroys the sense
of relaxation and freedom that men seek in open spaces and public arenas.”).
283 WESTIN, PRIVACY AND FREEDOM, supra note 132, at 7.
229
The autonomous character of this decision, however, is not only seriously
affected by constant monitoring, as argued before, but also by prohibiting
wearing masks or hoods or prohibiting whatever means someone may find
suitable to keep her identity on reserve. As Slogobin put it, “[p]eople who
engage in expressive conduct in public know they will be observed. But they
may choose, like the pamphleteer or the petitioner, not to reveal their identity
for all sorts of reasons.”284
It would be wrong, in other words, to suggest that one withdraws privacy when
entering the public arena. As I have been arguing here, privacy in fact often
becomes a precondition for public engagement. Thus, even when in public we
expect to remain “nameless-unremarked,”285 being in the middle of a crowd
gives people the advantage of remaining “part of the undifferentiated crowd—
as far as the government is concerned.”286 It is precisely because protesters
have done nothing wrong—let alone illegal287—that they want to remain free
from identification, even when in public.288
Could democracy require citizens to appear with uncovered faces? After all,
publicity has been held to be—since Kant stated so in his essay on Perpetual
Peace—a precondition for justice.289 This is, no doubt, a sensible claim that
284
Slobogin, Public privacy, supra note 222, at 256.
Id., at 238.
286 Id.
287 Id. at 244-5 (arguing that we should not have trouble in understanding why we sometimes
want actions, although totally legal and taking place in public locations, to be kept secret, such
as attending an alcoholics anonymous meeting, going to a gay bar, a visit to the doctor, or a love
affair, to name a few).
288 Id. at 239.
289 IMMANUEL KANT, PERPETUAL PEACE A PHILOSOPHICAL ESSAY 196 (M. Campbell Smith trans., G.
Allen & Unwin Ltd. Macmillan Co. 1917) (1795) (“The possibility of this publicity, every legal
title implies. For without it there could be no justice, which can only be thought as before the
285
230
demands clarification. The clarification is this: whereas it would be wrong to
read privacy as anonymity as opposed to public participation, not every
anonymous political intervention will be deemed democratically acceptable.
First, it should be noted that publicity primarily applies to States and not to
their citizens.290 This is so because citizens and governments perform different
duties and functions, and this is the way we see each other.291 Differences in
power and responsibility, for example the extremely limited power electors
have over their representatives as compared with the considerable power the
latter have on citizens, bring very different standards of publicity and
accountability.292 Furthermore, imposing standards of publicity—or of
informational flow—suited for the State on citizens would be an injustice, the
injustice of allocating duties (publicity) according to the standards meant for
other spheres (governmental).293
Of course, functional differentiation, that is, the fact that States and citizens
perform different functions each with its own norms of information flow,
cannot be the exclusive criterion to judge when publicity is required, for this
would leave without explanation many situations where citizen transparency is
eyes of men: and, without justice, there would be no right, for, from justice only, right can
come”).
290 Evan Darwin Winet, Face-veil bans and anti-masks laws: State interest and the right to cover
the face, 35 HASTINGS INT’L & COMP. L. REV. 217 (2012) (arguing there is no such right “to see the
bare face of another person.”).
291 As Nissenbaum has convincingly argued, different contexts and functions require different
flows of information. Unidirectional flows of information are not strange. In the context of
healthcare, for instance, the flow of information is far from bidirectional—indeed it is a context
where information flows from patient to physician. Nissenbaum, Privacy as Contextual Integrity,
supra note 127, at 142.
292 Annabelle Lever, Mill and the secret ballot: beyond coercion and corruption, 19 UTILITAS 354,
359-61 (2007).
293 Nissenbaum, Privacy as Contextual Integrity, supra note 127, at 143-5.
231
also expected.294 In order to explain why this is so we must unveil the
democratic principle behind governmental publicity. The reason why we want
governments to be transparent is to promote what has been called
independency through dependency to assure, to the extent possible, that
governments remain responsive to the people and the rules framing their
public duties and not to undue influences.295 The standard of independency
through dependency, and not an unqualified duty of publicity applicable to all
citizens, allows us to highlight differences between social protests—where
privacy as anonymity could be constitutionally protected—and other means of
political intervention—where transparency is sensibly required, such as
lobbying or campaign financing.
In fact, while protesters present their arguments in a public fashion—
regardless if they have concealed their faces—, lobbying and campaign
financing do so secretly—regardless of having an uncovered face. This is the
reason why it is sound to require lobbyists to (at the least) appear in public
light. Because they have sought to conceal not so much their identity, but their
arguments, interests, and motivations—precisely the aspects social protests
publicly present—, they thus compromise the public good in order for private
interests to benefit.296 Put differently, whereas in public protests we know,
even when we do not see faces, what ideas might have affected a governmental
294
Recall that I have said that whereas it would be wrong to read privacy as anonymity as being
opposed to public participation, not every anonymous political intervention will be deemed
democratically acceptable.
295 LAWRENCE LESSIG, REPUBLIC, LOST. HOW MONEY CORRUPTS CONGRESS—AND A PLAN TO STOP IT 130-1
(2011).
296 I took these ideas from Zephyr Teachout, The unenforceable corrupt contract: corruption and
Nineteenth-Century law, in MONEY, POLITICS, AND THE CONSTITUTION: BEYOND CITIZENS UNITED 135,
138-46 (Monica Youn ed. 2011).
232
decision, secret lobbying and anonymous electoral financing prevent us from
seeing what agenda and interests (decisively) influence the State’s march.297
After all, when individuals protest anonymously they still remain in public, yet
undifferentiated.298
Finally, some have argued—as presented in a previous example—that open
voting might encourage someone “to vote in a discursively defensible
manner.”299 While this is an important argument, it does not affect my claim
here. For one, in a social protest the message (say, the popular interpretation of
the constitution) remains public, and the same happens with the reasons and
arguments that protesters put forward. For another, I am not suggesting, as is
the case with secret voting, that protesters must cover their faces when
participating in protests, but that they may if they feel the need to do so (such
as when they want to avoid reprisals). In the end, a protester who conceals his
or her face neither ceases to be a public-minded citizen nor corrupts the
government by bringing it down to answer private interests.300 In fact, it could
be argued that actually the opposite is the case: a protester who conceals his or
297 See, DAVID SCHULTZ, ELECTION LAW AND DEMOCRATIC THEORY 260 (2014) (“The argument for
disclosure here is a structural democratic claim in favor of building up a wall that shields the
polity from being influenced by money and economic market factors.”).
298 Brown, Anonymity, faceprints, and the Constitution, supra note 219, at 413-4 (“Anonymity
enables one to remain undifferentiated in public.”).
299 Geoffrey Brennan & Philip Pettit, Unveiling the vote, 20 BRIT. J. POL. SCI. 311, 311 (2009).
300 Zephy Teachout, The Anti-Corruption Principle, 94 CORNELL L. REV. 241, 377-9 (2009)
(arguing citizenship is a form of public office also malleable by corruption when oriented
toward private interests). This is, in a similar sense, what Schmitt argued against secret voting.
The fact that such secrecy transforms citizens, otherwise part of the people and bearers of
public opinion, into private individuals who manifest their ‘private opinions.’ CARL SCHMITT,
CONSTITUTIONAL THEORY 273-4 (Jeffrey Seitzer trans. Duke University Press 2008) (1928).
233
her face wants to bring attention exclusively to arguments, rather than to the
faces that pronounce them.301
Besides those practices that dishonor the independency through dependency
principle, it is reasonable to consider a second set of practices that are not
constitutionally covered by privacy: crimes. The problem here is how to strike
the right balance between governmental interest in preventing crime, on the
one hand, and those of the protesters in exercising constitutional rights, on the
other. While this is a question that is hard to answer in the abstract, it is useful
to consider some general ideas in the context of social protests.302 I want to
argue that in order to strike the right balance we should start by paying
attention to the harms that overreaching criminal legislation (may) pose on the
exercise of rights.303
Although freedom of expression can be invoked as an independent justification
for anonymity, I think it has a stronger (constitutional) force when linked to
privacy, for it is the harm on privacy what prevents people, particularly
unpopular groups, from concurring to shape public opinion. After all, as the
Supreme Court of the United States held in NAACP v. Alabama, political
participation may require some form of anonymity.304
301
Solove, A Taxonomy of Privacy, supra note 133, at 515 (“Anonymity can enhance the
persuasiveness of one's ideas, for identification can shade reception of ideas with readers'
biases and prejudices. This is why, in many universities and schools, exams are graded
anonymously.”).
302 SOLOVE, UNDERSTANDING PRIVACY, supra note 155, at 187-8 (arguing that, although the “balance
might come out differently across various societies,” the taxonomy of harms he proposes have
been recognized as problems “in nearly every industrialized information-age society”).
303 This is, as you can see, a very modest claim.
304 N.A.A.C.P v. Alabama, 357 U.S. 449 (1958).
234
It is useful to begin distinguishing between ‘general anti-mask’ laws, where the
mere fact of wearing a mask results in criminalization, from ‘criminal antimask’ laws, where wearing a mask results in criminalization as long as
authorities prove criminal intent from those wearing masks.305 From the
constitutional viewpoint of the right to protest, the former laws end up being
tremendously problematic, for they ban the use of any masks, including those
being used for legitimate reasons. It does not matter what circumstances
individuals argue. It also does not matter if protesters fear retribution or
experience anxiety—such as a serious loss of autonomy—due to having their
faces associated to specific groups. The use of masks, under this approach, is
always illegal. The latter laws might also be problematic if, as I have noted
above, the mere fact of wearing a mask is considered to be an indicator of
criminal intent. As long as masks themselves are not seen in this light, there
might be a way of conciliating these laws with the exercise of rights.306 I will
assume this understanding for the second kind of laws, although the practice
and governmental intent often proves the opposite, and will focus my attention
on ‘general laws.’
Some have argued that when the State claims to be preventing crime it is not
shielded from constitutional objections. I agree. Simoni, for one, argued
constitutional objections could be drawn from constitutional freedom of
expression. These objections, he suggests, are of two kinds: direct, when
305 Stephen J. Simoni, “Who goes there?”—Proposing a model anti-mask act, 61 FORDHAM L. REV.
241, 241-3 (1992). Simoni also mentions ‘narrow anti-mask laws,’ “which prohibit maskwearing only when the wearer actually seeks the resulting anonymity” (Id. at 243).
306 This is, in fact, the claim Simoni made when proposing a model anti-mask act. In doing so,
Simoni called to consider the legitimate exercise of rights as an exception to the prohibition. Id.
at 268-9.
235
statutes prohibit the use of masks (which are themselves considered to be
expressive conduct),307 or indirect, when the prohibition of masks prevents
people from taking part in what would otherwise be lawful activities.308 Others
have made a similar claim when noting that in Ghafari v. Municipal Court the
Court held that a general law intended to be applied to masked student
demonstrators outside the Iranian Consulate in San Francisco was “overbroad,
vague, and denied equal protection.”309
However, putting forth a defense exclusively based on freedom of expression is
limited in that it requires protesters to show that masks themselves serve an
expressive purpose—which could be, but is certainly not always, the case of
masked protesters. In Aryan v. Mackey, Winet notes that a court prevented the
enforcement of an anti-mask general law against Iranian students who wore
masks while protesting.310 The court, Winet shows, reasoned the masks
themselves constituted a form of symbolic speech that deserved constitutional
protection. The problem with this argument is that the Iranian students
succeeded in showing the masks themselves were a means of expression, but
307
That laws may end up directly affecting the exercise of freedom of expression can be easily
seen, Simoni convincingly argued, when considering the kinds of exceptions regulations
contain. For instance, the use of masks for purposes other than political matters (i.e.
entertainment) are usually allowed as accepted exceptions. This shows these regulations are
far from being totally neutral—the argument the State would make to justify regulations are not
content-based but neutral general laws—and that these regulations therefore do depend on
“the actor’s message.” Simoni, “Who goes there?”, supra note 305, at 250-1. Richard Parker
made an argument in favor of anonymity when discussing Abrams v. United States (250 U.S.
616, 1919). There, the elitist approach he criticized suggested all individuals should express
themselves unmasked. This approach, Parker contended, contributed to discriminate “against
expressions of ordinary energy, [that may contribute to further constitutional values such as
an] ‘uninhibited, robust … wide-open’” debate. Richard D. Parker, “Here the People rule”: A
constitutional populist manifesto, 27 VAL. U. L. REV. 531, 577 (1993).
308 Id. at 245.
309 Winet, Face-veil bans and anti-masks laws, supra note 290, at 233-4.
310 Id.
236
many others have failed in trying to prove the same.311 This was the case of the
Klu Klux Klan in Kerik,312 where the court considered the masks worn by the
Klan’s members were not symbolic speech, but instead “redundant with the
Klan robes and other regalia;” the masks added “no expressive force to the
message portrayed by the rest of the outfit.”313 Of course, the same criticism
may be directed against protesters who, by going to the streets and
demonstrating, are already expressing their viewpoints. Moreover, in Miller, 314
the Georgia Supreme Court found that members of the Ku Klux Klan had not
provided evidence that reprisals are likely to follow.315
Does privacy protection need to satisfy this high standard? Not necessarily. For
one, there are many forms of privacy protection that do not require
uncontrovertibly showing some kind of reprisal will follow.316 Peeping Toms,
for instance, are legally sanctioned for intruding on spheres of informational
privacy—as Moore has put it—, and not because the information
surreptitiously captured pose any specific, let alone uncontrovertibly proved,
risk such as future threats, harassments, etc.317 In fact, as Moore argues, an
311
Id. at 235.
Church of the American Knight of the Klu Klux Klan v. Kerik, 356 F.3d 197 (2d Cir. 2004).
313 356 F.3d at 206.
314 260 Ga. 669 (1990).
315 Miller, 260 Ga. at 675.
316 As the Supreme Court of the United States held in McIntyre,
The decision in favor of anonymity may be motivated by fear of economic or official
retaliation, by concern about social ostracism, or merely by a desire to preserve as
much of one's privacy as possible.
McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 341-2 (1995). It is true that Simoni argues that
the standard the Court relied on deciding NAACP v. Alabama does not require protection to be
afforded only before uncontroverted evidence, but only where a reasonable probability of
threats, harassments and other harms exist. However, NAACP v. Alabama is precisely a case
where anonymity (in that case of members of a political association) has no expressive purpose
itself but to enable political participation. Simoni, Model Anti-Mask Act, supra 305, at 265 n.160.
317 ADAM D. MOORE, PRIVACY RIGHTS. MORAL AND LEGAL FOUNDATIONS 82-7 (2010).
312
237
individual might not know that his or her privacy has been invaded or the
specific and ‘uncontroverted’ risks associated with this. The person’s privacy
would still be affected.318 For another, we are to consider that privacy concerns
do not rule dignity out of the picture as a sound foundation for privacy
protection. Many times dignity is actually the underlying value that justifies
privacy protection. This is the case of continental privacy law which, as
Whitman has argued,319 rests on personal dignity:
rights to control your public image—rights to guarantee that people see
you the way you want to be seen … rights to be shielded against
unwanted
public
exposure—to
be
spared
embarrassment
or
humiliation.320
Could it be that excessively permissible legislation on mask wearing can
incentivize crime? As Winet notes, ‘criminal anti-mask’ laws are perceived to be
less effective from the law enforcement viewpoint, for in these situations the
police should wait for those who are masked to “manifest[] clear intent to
commit a crime …”.321 I think this depends to a large extent on how much
anonymity is actually achievable. The fact that, even when we can
Id. at 96-7.
James Q. Whitman, The two Western cultures of privacy: Dignity versus Liberty, 113 YALE L. J.
1151 (2004). See also, BLOUSTEIN, INDIVIDUAL AND GROUP PRIVACY, supra note 267, at 39-46. This
does not mean that all privacy violations should be treated in exactly the same way nor that
they all cause the same harms as if they were based on a same essential core. As Solove has
persuasively argued, privacy is better understood as an umbrella concept encompassing
several and disparate groups of things and situations. Privacy, in other words, is a “pluralistic
concept … [that] does not have a uniform value. Its value varies across different contexts
depending upon which form of privacy is involved and what range of activities are imperiled by
a particular problem.” SOLOVE, UNDERSTANDING PRIVACY, supra note 155, at 173, 185-7 (arguing
different countries recognize the same privacy problems).
320 This distinction, Whitman notes, is certainly a matter of degree. Whitman, The two Western
cultures of privacy, supra at 319, at 1161-4.
321 Winet, Face-veil bans and anti-masks laws, supra note 290, at 232.
318
319
238
(constitutionally) hold a reasonable expectation of privacy in public, total
anonymity is impossible to achieve—largely because of the means the State has
at its disposition—should balance governmental anxiety regarding mask
wearing at protests. Even when protesters mask their faces, they do so in
public. They are thus able to keep their identities hidden, but not the fact that
(when this is the case) they are (publicly) committing a crime.322
Admittedly, calling authorities’ attention to the importance of these collective
harms has proven difficult. Courts and legislators do not seem to consider
harms other than specific injuries, very narrowly understood, to particular
individuals.323 This narrow approach has prevented them from noticing the
impact these overreaching regulations on the use of masks and other devices
have had, and may have, on protesters. Whereas some have suggested tackling
these harms by paying exclusive attention to individuals’ freedom of
expression, I think—as I hopefully have showed—that it is better to see
freedom of expression as another victim (harm) of the scant attention
protesters’ privacy has received. Put differently, it is not privacy or freedom of
expression, but two constitutional rights that are to be considered together in
expanding the scope of the (positive) right to protest.
Once again, a neglected approach might consider this form of privacy opposed
to the public role of protests. After all, protesters appear in the public sphere to
become, by that very act of self-assured visibility, political and recognized.
However, as I have explained, this form of privacy is not considered as such. As
322
323
Brenner, The privacy privilege, supra note 262, at 141-2.
SOLOVE, UNDERSTANDING PRIVACY, supra note 155, at 179-83.
239
I have been arguing, privacy may actually work as a condition to appear
publicly. Privacy, here, is the right we have to determine our public image.324
This is, as you may recall, what Nissenbaum called privacy as ‘contextual
integrity,’325 that is, the right we have to hold distinct relationships with
different people and to share different information depending on contexts.326
Privacy is not a device to seclude us from the outer world, although it may
operate as such. Rather, it is the power we have to determine “how we present
ourselves before the world.”327 This right includes our decision to appear and
pose political arguments (for instance, about how to better understand our
constitutions) far from the government’s eyes or anonymously.
Conclusions
We know that rights are not simple entities but they embody a cluster of legal
positions. This, I have claimed, is also the case of the right to protest.
Traditional accounts of the right to protest mention both freedom of expression
and the right to assembly as its foundations. This is what I explained in Chapter
3. This present chapter, relying on those foundations, has advanced in
expanding the legal basis of the right to protest. I have sought to show that
there are other constitutional rights that may also concur in framing the right
to protest.
These rights, namely a reconceptualization of the public forum doctrine and the
right to privacy, as I have argued, expand the force of the right to protest. The
324
Id. at 1168.
Nissenbaum, Toward an Approach to Privacy in Public, supra note 124, at 216.
326 Id.
327 Whitman, The two Western cultures of privacy, supra at 319, at 1168 (quoting Rossinio).
325
240
expansion, as I have been trying to show, can be seen not only in the fact that
these other rights come to play, thus extending the array of legal positions at
hand, but also in the fact that it is only by considering these new rights that we
can notice many situations that otherwise may appear as unrelated to the right
to protest. This is the case, as I have contended, of privatizations—that one
could see as simple policies related to the administration of resources—and the
use of public vigilance—that one could see as simply related to public security
policies. Instead, I have shown that a new conception of the public forum
doctrine along with privacy rights can take us to dispute these decisions (such
as privatizations and public vigilance) in light of how many restrictions they
place on available spaces to shape public opinion.
241
CHAPTER 5
POPULAR CONSTITUTIONALISM AND SOCIAL PROTEST
I. Popular constitutionalism
A. Just multitudes?
B. Foundations
C. Avenues (to speak)
II. Popular institutionalism
A. The need for institutions (avenues to be heard)
B. Disregarding the State
Introduction
“Here lies the dilemma of the revolutionary within a society unripe for revolution.
If he stands aside from the main currents of social change, he becomes purist,
sectarian, without influence. If he swims with the current, he is swept downward by
the flow of reformism and compromise.”
E. P. Thompson∗
∗
William Morris, in PERSONS AND POLEMICS, HISTORICAL ESSAYS (1994). I’d like to thank Pedro Lovera
Parmo for having brought this reading to my attention.
242
Many current social protest movements deal with constitutional matters. This is
not to say that protesters are themselves conscious about the fact they are reading
the country’s constitution nor that they are citing specific constitutional provisions
to the forum—although some of them have done so. However, it means that
protesters are dealing with the issues they/we most care about.1 In some cases, in
fact, they are dealing with the bases upon which politics is built.
Here are some examples:
In Iceland, massive social protest movements contended their political class was
unable to cope with financial institutions. Rather than keep a vigilant eye on banks,
politicians have allowed them to operate as sovereign institutions whose directors,
different from ordinary citizens, have a direct line with the country’s most
important political authorities.2 Consequently, and taking note of an old
aspiration,3 they claimed (although eventually failed) a new constitutional order
was to be discussed. In Greece, one of the nations where the economic crisis has
become most tangible, protesters joined their Icelandic counterparts in their
allegations against the political class—which they already considered gone.4 They
also made more powerful demands. In struggling with the austerity measures
imposed by the European Union (EU), protesters claimed Greece’s commitment to
1
MARK TUSHNET, WHY THE CONSTITUTION MATTERS (2010).
MANUEL CASTELLS, NETWORKS OF OUTRAGE AND HOPE: SOCIAL MOVEMENTS IN THE INTERNET AGE 38-9
(2012).
3 Á. TH. Árnason, A Review of the Icelandic Constitution – popular sovereignty or political confusion,
2011 TIJDSCHRIFT VOOR CONSTITUTIONEEL RECHT 342, 343-6 (2011) (arguing Iceland’s Constitution is
mainly a set of old rules adapted from the old Danish monarchy in 1941).
4 PAUL W. MASON, WHY IT’S STILL KICKING OFF EVERYWHERE: THE NEW GLOBAL REVOLUTIONS 88-93 (2013).
2
243
the EU is to be reviewed on the basis of popular decision-making.5 The indignados
in Spain followed a similar path; they contended their political class was doomed
to fail before the power of financial institutions.6 The ‘Occupy’ movements across
North America were also involved in key political-constitutional matters; those
camping in New York parks defied their authorities to confront massive financial
frauds, and their mobilizations and sit-ins also included claims related to job cuts
in the public sector7 and healthcare reform8. Chilean students and their fellows in
Quebec also posed crucial matters in the spotlight; while the former argued the
State should ensure free access to secondary and university education, the latter
demonstrated against the raising of university fees. In both cases crucial public
policies, including the definition of key sections of national budgets, were involved.
Should we be troubled by a multitude of people marching onto the streets to
influence the way in which the constitution is to be understood? The first part of
this chapter (I) will discuss this question from a normative viewpoint. By
presenting the mainstream assumptions liberal constitutionalism has been based
upon, namely that constitutions are legal codes whose interpretation belongs
exclusively to courts (and, eventually, lawyers), I shall contend there are new
constitutional approaches that highlight the decisive role of the people in
constitutional understanding. Here the role of the people is not only to influence
5
COSTAS DOUZINAS, PHILOSOPHY AND RESISTANCE IN THE CRISIS 10-5 (2013).
MASON, WHY IT’S STILL KICKING OFF EVERYWHERE, supra note 4, at 216-20.
7 Id. at 184-7.
8 Occupy Wall Street Protesters Rally for Health Care Reform, NY1, June 23, 2011, available at
http://manhattan.ny1.com/content/top_stories/149489/occupy-wall-street-protesters-rally-forhealth-care-reform.
6
244
constitutional interpretation, but also to contribute—as long as their claims are
heard—to its legitimacy.
The second part (II) will clear up some misunderstanding about popular
constitutionalism. In fact, popular constitutionalism, although promising to give
the people a say in constitutional understanding, proposes a mediated process
where governmental institutions play a key role. The State and its institutions are
actually the tools the people have to make their popular interpretations of
constitutions effective. This will take me to consider recent waves of protest, such
as the indignados or ‘Occupy,’ that have rejected engaging with the State.
I. Popular constitutionalism
This part aims at normatively building the legitimate relation that exists between
social protest and constitutional law. To do this, I (A) explain the mainstream
assumptions liberal constitutionalism has been based upon, namely that
constitutions are legal codes whose interpretation belongs exclusively to courts
(and, eventually, lawyers). In this landscape, the people themselves are pictured
(at best) as incompetent to deal with constitutional matters. As I will show, (B)
popular constitutionalism has rightly contended these assumptions by proposing
an understanding of constitutions which is open to popular interpretations. While
all popular constitutionalists share this principled understanding of constitutions,
they place different emphasis on this openness depending on the governmental
245
branch they highlight as the proper forum for constitutional interpretation. I shall
close the first section (C) arguing that popular constitutionalism is sympathetic to
non-institutional means of constitutional exposition, social protests included.
Thus, under the banner of popular constitutionalism, social protests—as one of the
means the people resort to in order to advance their own (lay) readings of
constitutions—are not disruptive of constitutional understanding, but a
democratic input to its shaping.
A. Just multitudes?
Questions about the role of the people in constitutional interpretation are
particularly pertinent in times of widespread demonstrations and pervasive liberal
constitutionalism (or at least the most extended version of it).9 For liberalism has
tended to despise all forms of passion outpouring in politics and claims itself to be
the throne of reason,10 a view that has certainly impacted the way we see
constitutions (and their interpretation). By way of equating regular politics to
passion, conflict and disagreement, constitutions—our most important and
constitutive commitments—have unsurprisingly been shielded from legislative
intervention.11
9
I identify three core characteristics of liberal constitutionalism: (a) a written constitution, (b)
provided with a set of basic constitutional rights and other open-ended provisions, (c) whose
enforceability and definition depend, in the last judicial instance, on some high court.
10 See, MICHAEL WALZER, PASSION AND POLITICS: TOWARD A MORE EGALITARIAN LIBERALISM 110 ff. (2006)
(arguing liberalism itself is an expression of, and has roots in, passions); ANDRÁS SAJÓ,
CONSTITUTIONAL SENTIMENTS (2011) (arguing emotions and sentiments have played a large role in
shaping our current constitutional institutions).
11 Of course, this argument normally begs the question regarding foundational moments, where
politics (and thus passions and sentiments) also have their own way. See, LOUIS MICHAEL SEIDMAN, ON
CONSTITUTIONAL DISOBEDIENCE 20-1 (2012) (discussing that respect for the Constitution steams from
246
This politico-constitutional scenario offers little hope for those advocating a role,
let alone a paramount one, for the people to directly intervene in constitutional
politics. As Michael Walzer has argued, the rejection of passions in politics—or, as
he puts it, of some passions that hegemonic views have catalogued as bad/wrong
passions—has come at the cost of presenting dangerous sentiments as necessarily
associated to the people (the plebe) while linking enlightened and considered
judgment to elites.12 These dangerous sentiments (i.e. a rampant desire to oppress
those who hold different views) can manifest either when the people are acting
through their representatives as well as (and most notably) when acting by
themselves. The key assumption here is, as Jeremy Waldron has argued, the
rejection of assemblies (of people getting together to decide matters of common
concern). Legislative assemblies are seen as instances particularly propitious to
elicit passions and tumultuous disagreements, on the one hand, as well as
raising—precisely because of the assemblies’ numbers—clear obstacles to rational
lawmaking, on the other.13 James Madison addressed these alleged obstacles when
he was dealing with the appropriate number for legislatures; “the number ought at
most to be kept within a certain limit, in order to avoid the confusion and
intemperance of a multitude.”14
a reasoned decision “to be preferred to decisions made in the heat of a particular political
moment”).
12 WALZER, PASSION AND POLITICS, supra note 10, at 121 ff.
13 JEREMY WALDRON, THE DIGNITY OF LEGISLATION 28-35 (1999).
14 THE FEDERALIST No. 55, at 275 (James Madison) (Oxford University Press 2008).
247
If this is how legislatures are seen, the people themselves come up worst, for noninstitutional mechanisms of participation are not considered forms of dialogue at
all. Crowds, gatherings and demonstrations—the argument goes—are per se the
spaces where passions will flourish.15
In all very numerous assemblies, of whatever characters composed, passion
never fails to wrest the scepter of reason. Had every Athenian citizen been a
Socrates every Athenian assembly would still have been a mob.16
Indeed, men and women acting by themselves in constant dispute and
disagreement are precisely the reasons that call for a civil organization to
overcome the state of irrationality.17
Courts, more than any other institutional arrangement, have been vindicated from
this view. For as Jeremy Waldron has argued, the perverse imagery used to
describe legislatures (“as deal-making, horse-trading, log-rolling, interestpandering, and pork-barreling—as anything, indeed, except principled political
decision-making”) has been accompanied by an “idealized picture of judging”18 (as
being “not directly political” and isolated “from the conditions of ordinary life”).19
15
See, SAJÓ, CONSTITUTIONAL SENTIMENTS, supra note 10, at 246-7.
THE FEDERALIST No. 55, at 275 (James Madison) (Oxford University Press 2008).
17 See, STEPHEN HOLMES, PASSION AND CONSTRAINT: ON THE THEORY OF LIBERAL DEMOCRACY 75-8 (1995).
18 WALDRON, DIGNITY OF LEGISLATION, supra note 13, at 1-2. That judges are idealized is more than a
simple exaggeration. See, J. HARVIE WILKINSON III, COSMIC CONSTITUTIONAL THEORY: WHY AMERICANS ARE
LOSING THEIR INALIENABLE RIGHT TO SELF-GOVERNANCE 21 (2012) (“The imperfections of democracy
[intolerant, biased, venal …] are the imperfections of the human condition, which, by the way, have
not passed the judicial branch by.”).
19 Id. at 24-5, 31; Erwin Chemerinsky, In Defense of Judicial Review: A Reply to Professor Kramer, 92
CAL. L. REV. 1013, 1016 (2004) (claiming that assuming popular constitutionalism postulates would
mean that “[c]onstitutional interpretation would be transferred from an institution largely
insulated from political pressure to one that is highly majoritarian”).
16
248
Their institutional settings—as some have argued20—would allegedly grant them
the capacity to be shielded against politics (passions, conflicts and factious
interests).21 In fact, many of liberalism’s most prominent expositors have accorded
courts—the forum of principles22—the capacity to better articulate “the political
ideal of a people to govern itself in a certain way” as expressed in the
constitution.23
Hence, constitutional law has began to be seen as a lawyers’ bastion and
consequently (being a kind of law)24 as courts’ exclusive terrain, for courts have
faced little opposition to setting themselves up as the final readers and expositors
20
See, RONALD DWORKIN, A MATTER OF PRINCIPLE 69-71 (1986) (arguing courts are institutionally
designed to ensure rights issues will be properly and morally dealt with); Horacio Spector, Judicial
Review, rights, and democracy, 22 L. & PHIL. 285, 292-3 (2003) (affirming “law ought to secure an
institutional setting for people to exercise the discursive moral powers associated with moral
rights,” which he suggests would be courts—“institutional arrangements enabling holders of such
rights to express their claims and grievances in their own voice and ensuring them a deliberative
and impartial response”).
21 BRUCE ACKERMAN, 1 WE THE PEOPLE: FOUNDATIONS 9-10 (1991) (arguing the Supreme Court “serve[s]
democracy by protecting the hard-won principles of a mobilized citizenry against erosion by
political elites who have failed to gain broad and deep popular support for innovations”).
22 DWORKIN, A MATTER OF PRINCIPLE, supra note 20, at 2-3, 10-1, 32 (“[S]ociety … promises a forum in
which his claims about what he is entitled to have will be steadily and seriously considered at his
demand.”).
23 JOHN RAWLS, POLITICAL LIBERALISM 215-6 (1996) (arguing the Supreme Court has “to explain and
justify” its decisions on the Constitution, something “the legislative and the executive need not”). He
would later insist this presents the Supreme Court as an exemplar of public reason, “the only
branch of government that is visibly on its face the creature of that reason and of that reason
alone.” Id., at 231 ff. It should be stressed that, even if the argument of judicial settings is not
convincing enough, there still might be reasons of outcome—as some have argued—to grant courts
the power to veto legislative decisions. As professor Fallon, Jr. has argued, judicial review might
“promote[] better outcomes than would exclusive legislative definitions of disputed rights …”.
Richard H. Fallon, Jr., The core of an uneasy case for judicial review, 121 HARV. L. REV. 1693 (2008).
But see, JOHN H. ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 56-60 (1980) (arguing we
should question the “alleged incompatibility between popular input on moral questions and
‘correct’ moral judgment”).
24 See generally, STEVEN D. SMITH, THE CONSTITUTION & THE PRIDE OR REASON 36-9 (1998) (arguing
American framers decided to lay down a law-shaped document to institutionalize what they saw as
‘self-evident’ truths); Larry Alexander, The Constitution as Law, 6 CONST. COMMENT. 103 (1989)
(arguing stability, predictability, a theory of authority, the interpretation and settlement of conflicts
all advise that the constitution should be considered the law).
249
of the constitution,25 triggering a shift in public attention from representative
chambers to judicial halls.26 Constitutions have thus become ‘juricentric.’ This
means, as Post and Siegel have put it, that judges consider constitutions “as a
document” that speak only to them.27 It is no wonder judges have been declared
the constitutions’ exclusive guardians and expositors of its moral, open-ended, and
vague principles.28 Accordingly, judges—and with them society at large—assume
that constitutions are legal codes rather than a layman’s document.
If courts end up being vindicated vis-à-vis parliaments in general depictions of the
work of politics, the same occurs under ‘juricentric constitutions,’ for here
parliamentary interpretations of constitutions are seen—when contended—as
merely transitory before courts. Courts’ decisions are actually expected to either
25
ALEC STONE SWEET, GOVERNING WITH JUDGES: CONSTITUTIONAL POLITICS IN EUROPE 1 (2000) (“‘new
constitutionalism’ has it that legislation must conform to the dictates of the constitution—as
interpreted by constitutional courts—or be invalid.”). See also, AHARON BARAK, THE JUDGE IN A
DEMOCRACY 134 (2006) (affirming judges “must give expression to the constitution’s fundamental
values … [that] act as a basis for judicial review of the constitutionality of statutes.”).
26 On the relevance of the matters addressed through judicial decisions, see, RAN HIRSCHL, TOWARDS
JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM 169-99 (2004).
27 Robert C. Post & Reva B. Siegel, Protecting the Constitution from the People: Juricentric Restrictions
on Section Five Power, 78 IND. L. J. 1, 2 (2003) (criticizing the role courts played as exclusive
guardians of the Constitution in spite of popular forms of political engagement).
28 We find Dworkin to be a fine expositor of this form of constitutional interpretation. RONALD
DWORKIN, FREEDOM’S LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION 72-81 (1996) (arguing
the Constitution guarantees the rights required by the best conception of the political ideals laid
down in the Constitution—even if those rights are unenumerated). The role of courts in finding
rights not expressly enshrined in constitutions has been a major issue in the scholarly discussion in
civil law countries—under the label of ‘neo-constitutionalism.’ Promoted by the introduction of
constitutional courts, constitutional judges have had no reluctance in interpreting constitutions,
guiding their decisions and even striking laws down based on the constitution’s broadest and most
ample provisions. See generally, TEORÍA DEL NEOCONSTITUCIONALISMO [Neo-constitutional Theory]
(Miguel Carbonell ed., 2007); Paolo Comanducci, Formas de (neo)constitucionalismo: un análisis
metateórico [Forms of (neo)constitutionalism: a metatheoretical analysis], 16 ISONOMÍA 89, 100-1
(2002) (emphazising authors like Dworkin endorse an ideology of neo-constitutionalism
characterized by (i) considering the constitution as a law (ii) whose interpretation is specifically
legal—as technical).
250
endorse or reject those parliamentary readings, only then conferring these
decisions a seal of constitutionality. Moreover, a ‘juricentric constitution’ sees
parliamentary constitutional interpretations as threats to the “Court’s role as the
‘ultimate expositor of the constitutional text’,”29 and also downgrading politics as
unable to grasp constitutions’ actual meaning. If the constitution is the superior
law—the very fact that would grant courts the power to review other branches’
acts—, its interpretation becomes “emphatically the province and duty of the
judicial department.”30 Courts, judges, lawyers, and precedents have become part
29
Post & Siegel, Protecting the Constitution, supra note 27, at 3. Also consider the following passages
taken from ‘juricentric’ decisions:
This decision declared the basic principle that the federal judiciary is supreme in the
exposition of the law of the Constitution, and that principle has ever since been respected
by this Court and the Country as a permanent and indispensable feature of our
constitutional system. Aaron v. Cooper, 358 U.S. 1, at 18 (1958).
The framers envision a new strategy for the effectiveness of rights, which consist in giving
preference to the judge—and not to the executive or the legislator—the responsibility of
the efficacy of rights. Corte Constitucional [C.C.] [Constitutional Court], junio 5, 1992,
Sentencia T-406/92 (slip op. at 12), available at
http://www.corteconstitucional.gov.co/relatoria/1992/t-406-92.htm (my translation).
The Court has been entrusted to finally and definitively interpret the Constitution … the
court substitutes the will of those involved in the [constitutional] conflict, making its
opinion prevail over those branches involved. Tribunal Constitucional de Chile, STC Rol No
591, 11th Jan. 2011, par. 3, 9 (Chile) (my translation).
This constitutional outlook has now changed. The Knesset is no longer all-powerful in
exercising its legislative authority. In the area of human rights, the Knesset [parliament]
has limited its legislative powers by exercising its constituent authority.
It is the people that determines–according to the social philosophy developed over the
course of its history–who exercises the highest authority of the State, and its rule of
recognition. The Court gives expression to this social determination. The Court is the
faithful interpreter of the people’s will as expressed in the constitution. The Court attempts
to give the best possible interpretation of the totality of the national experience. Bank
Mizrahi v. Migdal Cooperative Village, [1995] ISRLR 1, at 142, 188 (Israel).
The Constitutional Court as the authorized interpreter of the Political Constitution and
guardian of the integrity of its text, has already well settled the binding character of the
ratio decidendi of its decisions. Corte Constitucional [C.C.] [Constitutional Court], febrero
22, 2011, Sentencia T-110/11 (slip op. at 8), available at
http://www.corteconstitucional.gov.co/relatoria/2011/t-110-11.htm (my translation).
30 Marbury v. Madison, 5 U.S. 137, 177 (1803).
251
of our common language, which has resulted in the exaltation of legalistic prose
when we argue and debate on matters as diverse as life31 and death,32 and war.33
Arguably, the critique that sees courts as final constitutional expositors may be
somewhat exaggerated. No matter whether courts see their decisions as final
constitutional expositions, politics will continue around divisive issues (i.e.
abortion and same-sex marriage, to name but two), and the constitutional
amendment alternative—however difficult to meet—will always remain open as a
valid challenge of judicial (although finally concessive of its supreme) authority.34
Whereas some scholars have emphasized the fact that courts are but one of the
participants in a broader and ongoing political dialogue related to constitutional
meaning,35 others have pointed precisely to the force and circumstances of politics
that prevent courts from monopolizing constitutional understanding,36 including
31 Kelly J. Hollowell, Defining a person under the Fourteenth Amendment: a constitutionally and
scientifically based analysis, 14 REGENT U. L. REV. 67 (2001-2) (referring to the “fourteenth
amendment person”).
32 Dworkin asked in Chapter 5 of his Freedom’s Law: “do now we have a right to die?” DWORKIN,
FREEDOM’S LAW, supra note 28, at 130; Vacco et al. v. Quill et al., 521 U.S. 793, 793-4 (1997) (“The
distinction between letting a patient die and making that patient die is important, logical, rational,
and well established: It comports with fundamental legal principles of causation.”).
33 William J. Ronan, English and American courts and the definition of war, 31 AM. J. INTL’ L. 642
(1937) (noticing courts have had a say in the definition of ‘war’ and/or ‘state of war’ when dealing
with domestic statutes).
34 John N. Hostettler & Thomas W. Washburne, The Constitution’s Final Interpreter: We the People, 8
REGENT U. L. REV. 13, 19-20 (1997) (arguing that if constitutional amendments are a check against
judicial supremacy, it means that we have already affirmed the court’s supremacy).
35 KENT ROACH, THE SUPREME COURT ON TRIAL: JUDICIAL ACTIVISM OR DEMOCRATIC DIALOGUE (2001).
36 Carol Nackenoff, Is there a political tilt to “juristocracy”?, 65 MD. L. REV. 139, 147-8 (2006)
(arguing that even if judicial decisions were final constitutional expositions, political deliberations
teach that a single issue has several other related aspects at stake); see also, ROACH, THE SUPREME
COURT ON TRIAL, supra note 35, at 31-2 (arguing that, despite certain exceptions—most notably in
the American case—, legislatures almost always can respond to a court’s decisions with legislation).
252
strategies legislators display to walk (that is, legislate) around judicial
constitutional interpretations.37
Possible exaggerations aside, some constitutional theories have correctly reacted
against too much emphasis on ‘juricentric’ interpretations of constitutions. These
approaches have highlighted the role of the people, as I will specify, either directly
or indirectly in reading the constitution. Under the rubric of popular
constitutionalism, scholars have questioned the role of courts as exclusive
constitutional expositors and, by suggesting different institutional arrangements,
have vindicated the people’s involvement in having a (crucial) say in key
constitutional issues.
Highlighting popular involvement in constitutional understanding, popular
constitutionalism seems promising before politico-constitutional demands posed
by current social protest movements.38 The following sections explore the
foundations of popular constitutionalism. They argue popular constitutionalism
reacts against juricentric and jurispathic courts in order to stress the role of the
people in constitutional interpretation. It ends noting social protests—the people
37
MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS 17-21 (1999).
Although it may be claimed that this is not entirely so, for, as I shall suggest, popular
constitutionalism assumes social movements always present their claims before institutional
authorities. Hence, it is unprepared to answer those constitutional visions running parallel to
formal avenues of political decision. In fact, what recent demonstrations have shown, as in the case
of Greek aganaktismenoi, Spanish indignados, and worldwide occupiers, is that large sections of
protesters are not interested in delivering any claims before their political authorities. As I said at
the beginning, they see their authorities as co-opted by large financial institutions and unable to
protect the people—let alone to channel democratic self-government. Bringing politicoconstitutional demands to the formal forum would amount, they claim, to (re) recognizing their
political capacity and legitimacy, exactly what they are contesting. I will argue the (constitutional)
advantage of engaging in institutional dialogue below, thus contending the withdrawal strategy
indignados and occupiers resorted to.
38
253
on the streets—are one among many avenues to pose popular and cultural
readings of constitutions.
B. Foundations
The whole constitution is not judicially enforced,39 nor the constitutional text
exhausts what we understand as constitutional matters—the issues we care about
the most.40 However, as experience shows, many of those sections of the
constitution that reach court chambers are the ones that provoke large and heated
disagreements.41 In fact, it is the political salience of these issues what brings both
courts and the constitution into the spotlight. As noted above, courts—whether
acting as supreme courts or constitutional tribunals—have found the way to erect
themselves as the constitution’s final expositors. Therefore, the issues we most
care about are, although primarily sketched by political branches, eventually
judicially determined.
It is not only that courts (non-elected bodies) have the final say, but also that they
diminish society’s jurisgenerative capacity. Some thirty years ago Robert Cover
called our attention to the jurisgenerative powers of society expressed through
different cultural medium.42 Laywomen and laymen exercise jurisgenerative
power—the capacity to create legal meaning—, through which they develop
39
LAWRENCE G. SAGER, JUSTICE IN PLAINCLOTHES: A THEORY OF AMERICAN CONSTITUTIONAL PRACTICE 84-92
(2004).
40 TUSHNET, WHY THE CONSTITUTION MATTERS, supra note 1; ADAM TOMKINS, PUBLIC LAW 9 (2003)
(“written constitutions are not complete codes capable of answering all constitutional questions.
Indeed no written constitution could ever be.”).
41 TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS, supra note 37, at 10-1
42 Robert M. Cover, The Supreme Court, 1982 Term. Foreword: Nomos and Narrative, 97 HARV. L. REV.
4, 11 (1983-4).
254
“alternative stories [that] provide normative bases for the growth of distinct
constitutional worlds.”43 They all look to the same authoritative constitutional text,
where there is one, but suggest different narratives as to its meaning. This
multifarious array of societal-constitutional meanings show—Cover believed—
that there is no “authoritative narrative regarding its significance.”44
What is the role supreme or constitutional courts play here? According to Cover’s
view, courts act in a ‘jurispathic’ fashion. Judges are people of violence whose job is
not to “create law, but to kill it”—he wrote.45 This should not come as a surprise.
Cover wrote this landmark piece when there was growing distrust toward the
State and disenchantment with the possibilities of conceiving it in a fashion other
than as the exercise of pure brute force.46 Therefore, the State, and courts
accordingly, exercises force that destroys legal meaning(s) by imposing the official
view. Indeed, they are here to solve the problem of the “fecundity of the
jurisgenerative principle.”47 When they do so, claiming such hermeneutic
superiority backed up by force, they shut down the “creative hermeneutic of
principle that is spread throughout our communities.”48
This is the scenario popular constitutionalism reacts against. It reacts against
courts that are both juricentric—those that hold an interpretation that sees the
43
Id. at 19.
Id. at 17.
45 Id. at 53.
46 Robert C. Post, Who’s Afraid of Jurispathic Courts?: Violence and Public Reason in Nomos and
Narrative, 17 YALE J. L. & HUMAN. 9 (2005).
47 Cover, Nomos and Narrative, supra note 42, at 40.
48 Id. at 44.
44
255
constitution as speaking exclusively to them—and jurispathic—those that aim at
killing non-judicial, but above all non-official, interpretations of the constitution.
Popular constitutionalism disputes the role of judges as the exclusive readers of
the constitution. It believes that our constitutional normative coordinates are
generated from avenues other than the formal corridors of judicial chambers. In
other words, they contend it is up to the people to have (at the least) a say
(although some argue the final say) on the meaning and extension of the crucial
matters principled constitutional provisions address. Popular constitutionalists
also argue there are many ways through which the people can channel the legal
meanings they envision; social protests are one among them.49
The core of popular constitutionalism can be stated in the following way: the
people should have a say on constitutional matters50—the final say, in fact.
Accordingly, any institutional arrangement seeking to take constitutional decisions
49
Despite the argument he later develops, the example Larry Kramer cites in one of the many
quotes he uses in opening one of the most important books published on the matter is remarkable:
“Saturday, July 18, 1795. At least 5,000 people gathered in front of Federal Hall in New
York to protest the Jay Treaty … Hamilton mounted the steps of a nearby building
surrounded by supporters and began to speak … someone in the crowd allegedly threw a
rock that hit Hamilton in the head. Similar scenes were repeated around the country.”
LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW 4 (2004).
50 Many popular constitutionalists claim to be accounting for U.S. history rather than posing a
normative claim. KRAMER, THE PEOPLE THEMSELVES, supra note 49, at 7; Robert C. Post & Reva B.
Siegel, Democratic Constitutionalism, in THE CONSTITUTION IN 2020 25-6 (Jack M. Balkin & Reva B.
Siegel eds., 2009); see also, Barry Friedman, Mediated Popular Constitutionalism, 101 MICHIGAN LAW
REVIEW 2596, 2598-9 (2002-2003) (arguing that the Supreme Court has always been responsive to
public opinion, “albeit not in the precise from in which [popular constitutionalists] ask for it.”).
Here I am extracting popular constitutionalism’s main traits in a rather normative fashion.
256
away from the people suffers from a key democratic deficit.51 Certainly the idea
that popular opinion should set bounds on every democratic government (as the
final touchstone of political and constitutional decisions) has taken many shapes in
the minds of those who advocate public opinion’s crucial role.
In his seminal piece on the matter Richard Parker advocated a majoritarian
reading of constitutional law.52 He attacked elitist constitutionalism which—in his
view—saw (as it currently sees) the political energy of ordinary people as a
problem and normally attached to values that run against (what they consider to
be) a good government: emotions, ignorance, short-sightedness, impulsiveness,
and so on.53 By claiming to rescue a populist sensibility, Parker vindicated the
participation of the people in constitutional matters, an approach also
accompanied by a reconsideration of the role emotions play.54
Parker did not claim the people’s voice to be infallible, but sovereign, or that the
government should be responsive to it.55 This required, as he noted, to
reconceptualize constitutional law as open, rather than essentially contrary, to
majority rule. He brightly dismissed claims about the alleged tyranny of the
51
As will be clear below, the democratic deficit stems from depriving the people from having the
final say and not—as it could not be in the context of representative democracies—from erecting
institutions in charge of being responsive to public opinion.
52 Richard D. Parker, “Here the People rule”: A constitutional populist manifesto, 27 VALPARAISO
UNIVERSITY LAW REVIEW 531, 532 (1993).
53 Id. at 553-4. To him our attitudes toward the people were crucial when determining the role they
are to play in politics. Id., at 532 (arguing precisely that our attitudes to the energy of ordinary
people define what we think “should be the mission of constitutional law … and the proper form of
reasoning about their derivation, definition, and application.”).
54 Id. at 557.
55 Id. at 556.
257
majorities by arguing experience shows majorities seldom rule.56 In regards to
apathy he argued this was a consequence of elitist constitutionalism that can be
counteracted; it is the appropriation, and privatization, of constitutional law by
lawyers and judges what has taken ordinary people not to participate, rather than
a presumed lack of interest.57
Accordingly, Parker reframed the role of constitutional law with a new mission: “to
promote majority rule … the goal inspiring argument about ‘interpretation’ of the
Constitution ought to be government of, for, and—to the extent it is feasible—by
the majority of the people.”58 People can certainly not be forced to participate, but
their intervention is to be encouraged by criticizing action or inaction “that tends
to frustrate opportunity for the effective exertion of ordinary political energy”59
and by reframing under this sensibility the exercise of much-praised political
rights.60
Parker certainly believed constitutional matters were of utmost importance, but he
contended they were to be (exclusively) read in a legal fashion. This is why he
called to deflate constitutional discourse, admitting at its heart lays “political
controversy about democracy, and about what it can be and what it should be.”61
56
Id. at 558-61, 569-71.
Id. at 561.
58 Id. at 573.
59 Id. at 574.
60 Id. at 577-9. I will say something about this below. For the time being, it is enough to notice that
current answers to popular challenges take the following form: political participation rights are
open to all. However, as Parker argues, that is not enough to overcome the elitist approach, for
rights are not exercised by the majority, on the one hand, and not every form of exercise is
protected, on the other, as only certain (most of the time, judicially-) accepted fashions are covered.
61 Id. at 580.
57
258
In fact, the terms of constitutional debate are “not so different from the terms of
ordinary political argument.”62 Notwithstanding the fact judges wear robes,
lawyers wear suits, and they talk in inflated terminology, “no fancy ‘theory,’ no
obsessive ‘methodology,’ can hide the fact that, like any argument, constitutional
argument
appeals—at
the
bottom—to
ordinary,
competing
sensibilities,
competing emotions.”63
As noted above, arguments favoring the role of courts in constitutional
interpretation came at the expense of the role of the representative branches and
ultimately of the people. Popular constitutionalism assault, as can be seen in
Parker’s work, turned the equation around. Accordingly, this resulted in a
vindicated role for legislatures in constitutional matters and a direct contention of
judicial review—seen as the very artifact to impose final constitutional readings.
Mark Tushnet, for example, called to take the constitution away from courts.64
First, he rejects that courts can fix political rules through their rulings. Judicial
decisions settle the particular dispute they are passed on, but cannot stand as
general political rules binding representative branches.65 Vital questions affecting
the whole people—Tushnet argues referring to Lincoln—are to be decided by the
people themselves and their representatives.66
62
Id.
Id.
64 TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS, supra note 37.
65 Id. at 6-9.
66 Id.
63
259
To determine what are the vital questions affecting the whole people, Tushnet has
us consider what he labels the “thin Constitution:”67 ample and vague principles
taken by the people to be a political, rather than judicial, rule. These principles are
(also) to be found beyond the constitutional text.68 The (thin) constitution can be
read in several ways as disagreement looms large on politico-constitutional
matters. Judicial decisions seldom bring these disagreements to an end. This is true
partly because political branches often find ways to circumvent the core of a
judicial decision—a practical way out that does not challenge, and can actually
exists together with, judicial supremacy.69 But above all it is true because of the
normative stance populist constitutionalism takes: that the political constitution
belongs to the people. These disagreements—Tushnet argues accordingly—are
“best conducted by the people, in the ordinary venues for political discussion.”70
Political disagreements, therefore, are best conducted by the people, but not in a
vacuum. These discussions, where people should have a vital say, take place in the
regular venues of political debate. This, Tushnet implies, shows the relevance of
politics, politicians and institutional avenues, as long as these avenues are
popularly informed. In Tushnet’s words:
67
Id. at 11.
Id. at 12-3.
69 Id. at 17-21, 23.
70 Id. at 14.
68
260
Discussions among the people are not discussions by the people alone,
however. Politics does not occur without politicians, and political leaders
play an important role in the account of populist constitutional law ….71
Giving the people a say in key constitutional matters not only makes them
participants in the common government,72 it also makes them own the
constitution73 and embrace it politically, thus shielding its content (though always
open to contestation).74 In Tushnet’s words, what limits governments are not
rights contained in texts, but those publicly and politically fought.75 As he puts it
citing Madison,
‘The political truths declared in that solemn manner [in a constitutional
text] acquire by degrees the character of fundamental maxims of free
Government, and as they become incorporated with the national sentiment,
counteract the impulses of interest and passion.’76
71
Id. An important part of Tushnet’s argument is devoted to showing the role of politicians and,
among them, leaders who are able to conduct and canalize the views of the people (this is actually a
two-sided dialogue) to identify when vital constitutional issues are at stake (id., at 23-5). Tushnet
has recently insisted on this point; if rights and (vital) constitutional arrangements are better
defended when politically embedded in the national sentiment, then the reason why the
constitution matters is because it sets the frame for politics to happen and function.
The Constitution matters because it provides a structure for our politics. It’s politics, not
‘the Constitution,’ that is the ultimate—and sometimes the proximate—source of whatever
protection we have for our fundamental rights.
TUSHNET, WHY THE CONSTITUTION MATTERS, supra note 1, at 1.
72 TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS, supra note 37, at 182-5 (arguing the
constitution set the terms of political discourse thus uniting us as a people).
73 Id. at 180-2
74 Id. at 185 (“populist constitutionalism does not dictate the position we must take on affirmative
action. Instead, it sets the terms of discourse.”).
75 Id. at 167.
76 Id. at 167.
261
Jeremy Waldron has examined in greater depth constitutional disagreement and
the adequate institutional avenue to democratically address, rather than to
resolve, this disagreement. He offers a vindicated role for legislatures, along with
arguments against judicial review of legislation.77
Members of a political community need to make (as we make) decisions on
matters of common concern.78 This is what he calls the ‘circumstances of politics,’
“the felt need among the members of a certain group for a common framework or
decision or course of action on some matter …”.79 Of course, what decisions should
be made will be subject to the burdens of pluralism and disagreement. People in
modern communities disagree on crucial matters—we “disagree with one another
every bit as much as strenuously about rights as [we] do about social justice and
public policy.”80 The harder the issues we have to address (i.e. the treatment we
should accord one another to respect a common, although unspecified,
commitment to equality), the more difficult the decisions will be.81
With this background of disagreement in mind Waldron argues that legislatures
are avenues of collective decision that account for, rather than just hide or wish
77 JEREMY WALDRON, LAW AND DISAGREEMENT (1999). Waldron has concentrated what he called “the
core” (meaning a process-based analysis independent of historical considerations and specific
manifestations) of the arguments against judicial review in his The Core of the Case against Judicial
Review, 116 YALE L. J. 1346 (2006).
78 WALDRON, LAW AND DISAGREEMENT, supra note 77, at 15-6.
79 Id. at 101-2.
80 Id. at 11-2.
81 Id. at 12. Waldron persuasively argues that “it is a mistake to think that the more important the
question, the more straightforward or obvious the answer.”
262
away, those disaccords.82 Legislation, in fact, shows the possibilities of
“achievement of concerted, co-operative, co-ordinated, or collective action,” even
in the face of pluralism.83 More importantly, legislation permits the kind of
achievements Waldron talks about in a democratic fashion. This is so as
legislatures open spaces respectful of each individual’s moral (and democratic)
agency. By recognizing politico-constitutional disagreement and pluralism
(“differences of opinion about justice”), legislatures respect each individual’s moral
responsibility to address matters of common concern by “embod[ying] a principle
of respect for each person in the processes by which we settle on a view to be
adopted as ours even in the face of disagreement.”84
Proponents of judicial review of legislation, the faculty granted to courts to review
legislative outcomes, normally point out the need to protect minorities from the
predatory self-interests of those voting. However, Waldron argues this overlooks
the moral autonomy accorded to individuals to have their own say about common
matters.85 Likewise, it denies that voting can be public-spirited and based on good
faith disagreement about common concerns.86 In fact, matters we care most about
are routinely what Waldron terms partial conflicts; we need/want to address
82
Id. at 16, 99 (“Legislation is the product of a complex deliberative process that takes
disagreement seriously and that claims its authority without attempting to conceal the contention
and division that surrounds its enactment.”).
83 This is already, Waldron notes, a reason to respect legislative outcomes: the fact that, even in the
face of looming disagreements, we can still coordinate actions and reach decisions—however
always open to contestation. Id. at 101-5.
84 Id. at 109.
85 Id. at 14 (arguing proponents of judicial review claim respect for the rights that will protect our
autonomy as equal moral agents while at the same time majorities are described as “irresponsible
Hobbesian predators”).
86 Id. at 14-5.
263
matters of (say) social justice, but we (reasonably) differ as to the specific
outcome.87 Finally, and most importantly, this alternative merely transfers
disagreement from one chamber, popular and representative, to another, elitist
and isolated.88 As he puts it,
Judges disagree among themselves along exactly the same lines as the
citizens and representatives do, and … make their decisions, too, in the
courtroom by majority voting.89
87
Id. at 103-5. This reference to issues of common concern we all address opens room in Waldron
(although in a fashion different from which he would hold) to accept judicial review—or any other
form of review—when decisions involved exclusively affect (or address) the interests of a single
(however difficult to define) group, even if the group is not formally excluded from participating in
the legislative debates. Consider, for instance, Roemer, where the U.S. Supreme Court considered a
California constitutional amendment passed against a political minority. As it is well known, the
amendment stated that “homosexual, lesbian, or bisexual orientation” would be barred from being
considered legal “basis of or entitle any person or class of persons to have or claim any minority
status, quota preferences, protected status or claim of discrimination.” Romer v. Evans, 517 U.S. 620
(1996). The Court held that this was a measure specially passed against a minority group. It stated,
we doubt, homosexuals could find some safe harbor in laws of general application, we
cannot accept the view that Amendment 2’s prohibition on specific legal protections does
no more than deprive homosexuals of special rights. To the contrary, the amendment
imposes a special disability upon those persons alone. Homosexuals are forbidden the
safeguards that others enjoy or may seek without constraint” (Romer, 517 U.S. at 631).
Some authors have developed a theory of judicial review limited to these kinds of cases, situations
in which courts, instead of focusing on discovering the fundamental values hidden in the
constitution, should—as Ely put it—keep political processes open to all viewpoints “on something
approaching an equal basis.” ELY, DEMOCRACY AND DISTRUST, supra note 23, at 79.
This is a case different from the situation where groups whose interests are addressed (most of the
case minority groups) are excluded from the discussion (something Waldron concedes, WALDRON,
LAW AND DISAGREEMENT, supra note 77, at 297). This exclusion does not necessarily need to be
formal; as we can imagine—as Ely did—, it can be in subtler forms of non-recognition as well. Cécil
Fabre has argued in a similar vein, but with the purpose of opposing Waldron, that not every debate
about rights is always about “rights all members have.” She also mentions the case where “the
legislature decides whether homosexuals should be granted all the rights heterosexuals have,” a
case where they are clearly addressing “rights for one group of the population, to wit homosexuals.”
Cécile Fabre, The Dignity of Rights, 20 OXFORD J. L. STUD. 271, 277-8 (2000) (her emphasis).
88 This is not just a transferring of a decision method from one chamber to another; “is a difference
of constituency.” WALDRON, DIGNITY OF LEGISLATION, supra note 13, at 128-9.
89 WALDRON, LAW AND DISAGREEMENT, supra note 77, at 15.
264
In a context where disagreement cannot be eliminated, granting judges judicial
review faculties amounts to an elitist approach to constitutional matters where
disagreements among citizens are seen not as politically relevant as disaccords
among judges.90 In fact, Waldron correctly points out that “citizens may well feel
that if disagreements on these matters are to be settled by counting heads, then it
is their heads or those of their accountable representatives that should be
counted.”91 In the end, a constitutional scheme where judges monitor (let alone
make final) constitutional interpretations becomes politically arbitrary;92
meanwhile, it also denigrates the people’s moral agency as equals to define the
issues of principle affecting them.93 This, Waldron agues, ignores the central role
the right to participation (‘the right of rights’) plays and represents as the means
through which we, in concert, govern common affairs.94 It is up to “[t]he people
whose rights are in question [to] have the right to participate on equal terms on
that decision.”95
A similar stance can be identified in Adam Tomkins’ work.96 According to Tomkins,
granting judges the enormous power to overrule political decisions, as if this
90
Disagreement among citizens, as the argument favoring judicial review goes, is equated to
passion, obscured reason and self-interest, whereas disaccord among judges is seen as debates
regarding the terms of law, as a genuine disagreement about reason and justice. Fernando Atria,
¿Qué desacuerdos valen? La respuesta legalista [What disagreements matter? The legalist answer], 8
IUS ET PRAXIS 419 (2002).
91 WALDRON, LAW AND DISAGREEMENT, supra note 77, at 15.
92 Id. at 168 (“In this democratic sense, ‘arbitrary’ means something like ‘without authority or
legitimacy’.”).
93 Id. at 249.
94 Id. at 233.
95 Id. at 244.
96 TOMKINS, PUBLIC LAW, supra note 40; ADAM TOMKINS, OUR REPUBLICAN CONSTITUTION (2005).
265
would prevent discretionary decisions from being made, is pure wishful thinking.
In the face of political disagreement, the kind of disagreement we face when
determining the details of constitutions, the only thing that the legal
constitutionalist model does is replace one avenue to make political decisions
(legislatures) “with untrammeled judicial discretion.”97
Worse still, by placing political decisions in the hands of judges, Tomkins argues
we risk being dominated by decisions made in an undemocratic and unaccountable
fashion.98 In fact, legal constitutionalism trusts crucial policy questions in the
hands of judges whose decisions will impact citizens, while citizens will lack any
power to affect these decisions. Indeed, “unlike those who in a democracy fold
political office, judges are neither democratically elected, accountable, nor
representative.”99 Besides the fact that access to courts is limited to those who can
afford lawyers’ fees,100 it is the very nature of the judicial forum what critically
alters the profile of decisions there made. Instead of producing public (common)
oriented decisions,101 courts offer an environment where decisions are adjudicated
between two parties, a setting which happens to ‘privatize’ what was (but now
ceases to be) a common matter open “to any reason … at any time” before the
political branches.102
97 TOMKINS, OUR REPUBLICAN CONSTITUTION, supra note 96, at 22. On the role Tomkins sees for courts,
see Adam Tomkins, The Role of Courts in the Political Constitution, 60 U. TORONTO L. J. 1 (2010).
98 TOMKINS, OUR REPUBLICAN CONSTITUTION, supra note 96, at 25.
99 TOMKINS, PUBLIC LAW, supra note 40, at 21.
100 Id. at 19-20.
101 Of course Tomkins is not suggesting judicial decisions lack any public impact.
102 TOMKINS, OUR REPUBLICAN CONSTITUTION, supra note 96, at 27-30.
266
How should the democratic shortfalls of legal constitutionalism be addressed? It
should do so by turning our attention to the political constitution. A political
constitution—Tomkins contends while explaining public law in England—is one
whose implementation depends on the actions and policy decisions of a
“responsible government,”103 one that is responsible to the people. A political
constitution creates a dynamic between citizens and public officials that courts do
not. In this scenario, “governments will not do things which they cannot politically
get away with,”104 for they will feel the people’s pressure; in other words, “they
will lose power.”105
How is it that a political constitution secures this control? By trusting decisions
over political matters to fora which are open and accessible to all.106 Different from
courts, which legally shield their decisions passed in chambers isolated from
political pressure, a political constitution seeks to secure public decisions—
whether good decisions or bad decisions—will be the people’ own decisions. To
claim control and authorship over political decisions, these decisions are to be
made in a forum that citizens can control and have power over.107 Of course, this
model demands an active role from citizens, who are to act in a public-spirit
fashion and oriented toward the common good.108 Public contestation and active
engagement are necessary conditions to create the dynamic and interaction that
103
Id. at 1.
TOMKINS, PUBLIC LAW, supra note 40, at 19.
105 Id.
106 TOMKINS, OUR REPUBLICAN CONSTITUTION, supra note 96, at 51-2.
107 Id. at 57-61.
108 Id. at 62-3.
104
267
permits popular control. To clarify, Tomkins does not argue there is any way to
eliminate governmental discretion.109 Rather, Tomkins insists we should ask
ourselves what forum we should trust with the power to regulate such discretion.
His answer admits no waver: if a community wants to have control over its
decisions, then the people should grant this regulatory power to the political
branches they have better access to.
Not all popular constitutionalists have taken the courts out of the picture. There
are those who, like Larry Kramer, have argued courts play a role, however modest,
in a larger constitutional deliberation that takes place among the different
governmental branches all under the people’s supervision. More tellingly, Robert
Post and Reva Siegel have affirmed that popular constitutionalism can actually be
conciliated with judicial supremacy, as long as courts (or the superior court) are
responsive to cultural and popular interpretations.110
Larry Kramer published what has become one of the most important pieces on
popular constitutionalism.111 According to Kramer, American history shows the
people have had a relevant role in understanding, interpreting and enforcing the
constitution. More importantly, this is a role the people have played for the most
part outside courts.112 Kramer does not contend courts should not play a role at all.
Instead, what he suggests, read in a normative fashion—and in what has become
109
See, TOMKINS, OUR REPUBLICAN CONSTITUTION, supra note 96, at 34-5.
Both approaches, as I mentioned before, claim to be describing, rather than prescribing, how
American constitutionalism has developed. Here I’m interested in proposing what would be the
theoretical principles behind that positive account.
111 KRAMER, THE PEOPLE THEMSELVES, supra note 49.
112 Id., at 7.
110
268
one of the most important variants of popular constitutionalism—, is that courts
should not have a final say as to how the constitution is to be interpreted. His is an
argument against judicial supremacy.
What matters for this variant of popular constitutionalism is that the people be
accorded the preponderant role in defining the constitution. Its paramount
objective is to make it clear that “courts have no normative priority in the
conversation” or in the constitutional dialogue among the different actors. As
Tushnet—commenting on Kramer—has put it, “for popular constitutionalism, it
simply does not matter whether, or when, or how, the courts come to accept the
constitutional interpretation offered by the people themselves.”113 This is why
Kramer highlights the people’s vigilant role. The constitution, he argues,
“remained, fundamentally, an act of popular will … made by the people … who
were responsible for seeing that it was properly interpreted and implemented.”114
If the people are to perform such a paramount role, there is obviously something
crucial we lose in terms of democratic self-government when the constitution is
understood as a legal text. In that scenario, as the professionalization of law
shows,115 the constitution becomes the terrain of lawyers and its reading their
monopoly. Judicial supremacy, meaning that courts have the final authority in
expounding
the
constitution,
is
therefore
113
at
odds
with
popular
Mark Tushnet, Popular Constitutionalism as Political Law, 81 CHI.-KENT L. REV. 991, 999 (2006).
KRAMER, THE PEOPLE THEMSELVES, supra note 49, at 6.
115 Id., at 162-6.
114
269
constitutionalism,116 for in such a model the people are deprived from taking part
in the republican process of shaping their constitution, while judges find a free
means to erect themselves as the constitution’s final expositors.
Interestingly, Kramer shows there is an important burden on the people. Judges
will never relinquish the power they have acquired, nor should we expect the
constitution itself to return to the people’s control. Rather, it is up to the people
(“the choice is ours to make”)117 to claim the role they never should have been
deprived of: that of being sovereign interpreters of the constitution. If a model of
judicial supremacy rests upon a constitution legally understood, and thus to be
exclusively read by judges, the first step is to claim the constitution back to the
people.118 The people should make courts aware that they are “our servant[s] and
not our master[s] … who [are] ultimately supposed to yield to our judgments about
what the Constitution means and not the reverse.”119 In other words, supreme
courts or constitutional courts, whatever the form they take, should come “to see
themselves in relation to the public somewhat as lower court judges now see
themselves in relation to the court: responsible for interpreting the Constitution
according to their best judgment, but with an awareness that there is a higher
authority out there with the power to overturn their decisions.”120
116
And an anomaly in American history, as Kramer saw it. Id., at 233.
Id., at 247.
118 Id.
119 Id., at 248.
120 Id., at 253.
117
270
Kramer’s book not only elicited revived interest in the role of the people in
constitutional politics, but sparked heated debate as well. Many of the critiques
pointed toward his historical account,121 while others focused on the proposal
itself.122 Perhaps this was what took Kramer to offer a new account of his work
where, despite defending the main argument, courts play a more relevant role than
the humble enforcement function depicted in The People Themselves.
To begin with (I borrow here a doubt posed by Alexander and Solum), when
Kramer argues the people themselves have authority to interpret and enforce the
constitution, does he really mean the people “have the authority to resolve
ambiguities in constitutional meaning or to provide supplemental constructions
when constitutional language is vague?”123 It might be that Kramer is not talking of
the people themselves, understood as a collective entity acting by itself, but
through institutions of representative democracy.124 In fact, in his later work
Kramer argues the foundations of popular constitutionalism are to be understood
as linked to majority rule as the result of a deliberative interaction between all
121
L. A. Powe, Jr., Are “The People” Missing in Action (and Should Anyone Care)? 83 TEX. L. REV. 855
(2005) (arguing Kramer’s historical analysis of the past fifty years is deeply flawed); Richard
Posner, The People’s Court, NEW REPUBLIC, Jul. 19, 2004 (“Kramer's treatment of the history of the
struggle between popular constitutionalism and judicial supremacy after the end of Martin Van
Buren's presidency in 1841 is just a sketch, occupying only twenty pages in a long book”).
122 Larry Alexander & Lawrence B. Solum, Popular? Constitutionalism? 118 HARV. L. REV. 1594, 1602
ff. (2005) (arguing Kramer’s concept of popular constitutionalism is “deeply ambiguous at best and
deeply confused at worst”).
123 Id., at 1603.
124 This is one of the critiques Alexander and Solum made; they ask whether Kramer is using the
idea of the people as signifying an “organic whole capable of collective action” or as “the collection
of human persons who are citizens or residents of a particular polity” (Id., at 1606-07).
271
three branches, all “to be subject to popular control.”125 While he remains
committed to popular constitutionalism, in the sense of seeing the people’s direct
interventions (protests) as politically legitimate, Kramer also suggests those
popular readings become institutionally depurated.
Finally, there are those who, like Robert Post and Reva Siegel, think it is possible to
reconcile popular constitutionalism with judicial supremacy. The label they have
chosen is democratic constitutionalism,126 which emphasizes the role of the people
in culturally shaping constitutional understandings.127 It strongly asserts the role
of the people as the touchstone of constitutional decisions made by institutional
actors. Among institutional actors democratic constitutionalism places a strong
emphasis on courts and judicial review. Its exponents do not see a radical
opposition between the people as constitutional rulers, on the one hand, and
judicial supremacy, on the other.128
First, democratic constitutionalism understands constitutional law as decisively
influenced by the people through interactions with (judicial) authorities. It sees
cultural readings of the constitution, “the beliefs and values of nonjudicial
125
Larry D. Kramer, “The Interest of the Man”: James Madison, Popular Constitutionalism, and the
Theory of Deliberative Democracy, 41 VAL. U. L. REV. 697 (2006).
126 I have taken this label from Post & Siegel, Democratic Constitutionalism, supra note 50.
127 Robert C. Post, Foreword: Fashioning the legal Constitution: Culture, Courts, and Law, 117 HARV. L.
REV. 4 (2003-4).
128 Robert Post & Reva Siegel, Popular Constitutionalism, Departamentalism, and Judicial Supremacy,
92 CAL. L. REV. 1027, 1029 (2004) (“In contrast to Kramer, we do not understand judicial supremacy
and popular constitutionalism to be mutually exclusive systems of constitutional ordering.”).
However, they understand constitutional law and popular constitutionalism to stand in a dialectical
relation. Id., at 1029; Post, Fashioning the legal Constitution, supra note 127, at 8.
272
actors,”129 as informing institutional decisions. These interactions are dialectically
interconnected;130 the people express their views about constitutional meaning in
contestation of longstanding readings of the constitution, but they do so in a frame
of common principles—whose very understanding is in dispute. As Post has put it,
“constitutional law both arises from and in turn regulates culture.”131 These
disagreements and interactions thus create a constitutional culture, that is,
“understandings of role and practices of argument that guide interactions among
citizens and officials in matters concerning the Constitution’s meaning.”132
Two further elements are crucial to understand democratic constitutionalism: the
way in which popular readings of the constitution are advanced and how these
popular readings limit institutional outcomes.
Although democratic constitutionalism acknowledges there are formal ways to
inform courts’ constitutional readings (voting in elections or judicial nominations,
to name a few),133 it also vindicates the politico-constitutional role social
movements play. It contends, therefore, that constitutional change may be
achieved by non-canonical procedures134 of norm contestation.135 Norm
129
Post, Fashioning the legal Constitution, supra note 127, at 8.
Post & Siegel, Popular Constitutionalism, supra note 50, at 1029.
131 Post, Fashioning the legal Constitution, supra note 127, at 8. Robert Post has also explained
different understandings of, and relations among, culture and law. Robert C. Post, Law and Cultural
Conflict, 78 Chi.-Kent L. Rev. 485 (2003).
132 Reva B. Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: The
Case of the de facto ERA, 94 CAL. L. REV. 1, 3 (2006).
133 Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 HARV. C.R.C.L. L. REV. 373, 380 (2007).
134 Post & Siegel, Democratic Constitutionalism, supra note 50, at 28 (“Article V amendments,
however, are so very rare that they cannot provide an effective avenue for connecting
constitutional to popular commitments.”).
130
273
contestation through social mobilization rests upon the recognition of the
jurisgenerative capacity of the people themselves.136 The fact that the people
themselves are vested with jurisgenerative capacity also shows that the limit
between law and politics is far from being sharply determined, and thus becomes
blurred.137 However, this jurisgenerative capacity is limited as not any cultural
interpretation is constitutional. What indicates that these mobilizations are
constitutional law is the fact that they are explicitly related to the constitution,138
for remember that constitutional law comes from below, but at the same time it
also limits culture. The dialectical nature of constitutional culture is evident;
135
Post & Siegel, Roe Rage, supra note 133, at 381.
Cover, Nomos and Narrative, supra note 42.
137 Siegel, Constitutional Culture, supra note 132, at 5
138 Post, Fashioning the legal Constitution, supra note 127, at 9. What interpretations and proposals
are related to the constitution can have at least two different, yet complementary, approaches. A
formal approach would assert that what defines an interpretation as constitutional depends on its
reference to the text of the constitution. A substantive approach, on the other hand, will emphasize
the political strength of the claim; it will be constitutional as long as it is related to the fundamental
issues we most care about. Reva Siegel, for instance, commenting on what she calls the public value
condition—that popular claims are to be framed as public values to be constitutionally sound—will
work as long as challengers are able to present their claims (concerns, grievances) framed under
common values. Where are we to find these common values? Claims, she goes on, should be
presented as required by the principles that are consistent “with principles and memories of a
constitutional tradition.” Siegel, Constitutional Culture, supra note 132, at 37. This loose
understanding of what the constitutional is as located inside-outside the constitutional text has
been also advocated by TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS, supra note 37, at
187 ff. (claiming populist constitutionalism focuses on the thin constitution—beyond the text of the
thick written constitution—, thus making constitutional politics possible) & WHY THE CONSTITUTION
MATTERS, supra note 1, at 6 ff. (arguing many of what we would call constitutional commitments are
not expressed in the text of the constitution, but in laws that, for whatever reason, have acquired a
constitutional level). If a popular claim is constitutional by reference to its political relevance or
fundamental character, this should also imply that not every provision in the constitutional text is
as fundamental as to prevent simple changes (interpretations, detailing, etc.). Attributing
constitutional character to whatever clause the constitution contains would rest exclusively on the
constitution’s formal contours—which I just mentioned are not decisive for popular, not even
institutional, readings. I have taken the distinction between substantive and formal constitutions
from CARL SCHMITT, CONSTITUTIONAL THEORY 67-74 (Jeffrey Seitzer trans. & ed., Duke University Press,
2008). See also, TOMKINS, PUBLIC LAW, supra note 40, at 7-14 (“the importance of the distinction
between written and unwritten constitutions is greatly exaggerated.”).
136
274
popular readings of the constitution contest longstanding assumptions about
constitutional law by resorting, but also ardently embracing, longstanding
constitutional principles (contestation/limit).139
Finally, democratic constitutionalism does not seek to “take the Constitution away
from courts”140—as Tushnet proposed—, but rather contends courts’ decisions are
limited by non-judicial interpretations. This means that courts, just as any other
governmental branch, operate as an agent of enforcement of culturally held
constitutional interpretations. In other words, a direct consequence of these
discursive interactions between the people and courts is that the courts do not act
on their own (arbitrary) will, but are checked by the people. The argument here
seeks to clean judicial review from its undemocratic whiff by showing
constitutional chambers, when properly paying attention to popular readings, do
not act as a small group of aristocrats imposing their will on that of the people, but
in accordance with them. As Post put it,
to the extent that a court views the substance of constitutional law as in
part dependent upon the outlook of nonjudicial actors, it will exercise … the
139
Jack M. Balkin & Reva B. Siegel, Principles, practices, and social movements, 154 U. OF PA. L. REV.
927 (2006). These interactions and contestations, democratic constitutionalism holds, also bring
positive externalities (externalities in the sense that they are positive outcomes different from a
court embracing the specific interpretation of the constitution posed by a mobilization), for it tells
the people that they have a say about how common principles are to be understood, thus renewing
their allegiance to the constitution. Dialectical relations of conflict and disagreement thus become
essential for democratic legitimacy, rather than disruptive. Post & Siegel, Roe Rage, supra note 133,
at 375. Reva Siegel has also argued the procedural limits cultural readings of the constitution are to
respect. These are the consent condition—emphasizing argument rather than coercion—and the
public value condition—highlighting common values embedded in the Constitution are the point of
departure for any interpretation that aims at becoming constitutional. Siegel, Constitutional Culture,
supra note 132, at 30-40.
140 Post & Siegel, Roe Rage, supra note 133, at 379.
275
“awesome power” of judicial review with some attention to the
understandings of those actors.141
Friedman has called this a model of mediated popular constitutionalism. This is a
model that says popular constitutionalists are obtaining what they want, namely
that the people are to have a say regarding constitutional meaning, although “not
in the precise form in which they ask for it.”142
C. Avenues (to speak)
Notwithstanding different ramifications, popular constitutionalism as a whole
exhibits a common thrust: its emphasis on the paramount role of the people in
interpreting the constitution. How do the people (themselves) present their
popular readings? There are many channels through which the people can make
governmental institutions (courts in particular) aware of their voice on
constitutional matters. These channels are both institutional (political elections,143
frontal attacks on courts through regulations,144 presidential elections,145 popular
141
Post, Fashioning the legal Constitution, supra note 127, at 6-7.
Barry Friedman, Mediated Popular Constitutionalism, supra note 50, at 2598-9.
143 Post & Siegel, Roe Rage, supra note 133, at 381 (arguing voting might be insufficient as a means
to contest constitutional detailing).
144 KRAMER, THE PEOPLE THEMSELVES, supra note 49, at 249 (noticing judicial supremacy, and thus
popular readings, can be advanced through judicial impeachments, reducing courts’ budget and
ignoring judicial mandates, among others).
145 David L. Franklin, Popular Constitutionalism as presidential constitutionalism?, 81 CHI.-KENT L.
REV. 1069 (2006) (suggesting, not endorsing, that one possible and plausible interpretation is that
today popular constitutionalism may well amount to presidential constitutionalism); Jedediah
Purdy, Presidential Popular Constitutionalism, FORDHAM L. REV. 1837 (2009) (arguing presidential
rhetoric to be an essential part of any adequate understanding of the practice of popular
constitutionalism). See also, Post & Siegel, Popular Constitutionalism, supra note 128, at 1030-1,
1042-3 (arguing that by choosing the President, and through the President appointing judges, “the
people retain the final word on the meaning of their Constitution …”).
142
276
selection of judges,146 and judicial nominations147) and non-institutional (protests,
boycotts and sit-ins). Social movements resort—as the literature on social
mobilizations has shown—complementarily to both formal and informal avenues. I
am here concerned with non-institutional mechanisms, specifically social protests,
that is, with the people themselves on the streets bawling (in a non-derogatory
sense) their constitutional reading.
Is popular constitutionalism sympathetic to these informal and disruptive means
of constitutional construction? The answer is a resound yes. First, popular
constitutionalism
places
great
emphasis
on
popular
narratives
about
constitutional meaning.148 Tushnet for one, when presenting a condensed view149
about what populist constitutionalism stands for, offered some elements among
which I single out the opportunity (right) to criticize the government and a place to
form independent views.150 Admittedly, those spaces of critique and independent
formation of views operate outside the State and its institutions—as Tushnet
says151—, but not necessarily in private—as Habermas has argued.152
146
David Pozen, Judicial Elections as Popular Constitutionalism, 110 COLUM. L. REV. 2047 (2010).
TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS, supra note 37, at 133-5; Friedman,
Mediated Popular Constitutionalism, supra note 50, at 2609.
148 See generally, Parker, “Here the People Rule”, supra note 52, at 580-3 (arguing to vindicate
common language on key politico-constitutional matters).
149 I say a condensed view, for Tushnet offers these elements when rejecting a procedurally driven
model of judicial review. TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS, supra note 37, at
157-63.
150 Id., at 157-8.
151 Id.
152 JÜRGEN HABERMAS: BETWEEN FACTS AND NORMS. CONTRIBUTIONS TO A DISCOURSE THEORY OF LAW AND
DEMOCRACY 360 ff. (1998).
147
277
Popular constitutionalism goes yet another step further, for it calls to remove these
instances of political participation from its elitist drapery, thus welcoming
informal mechanisms of participation deflated from pretentious language. As
Richard Parker put it when talking about the political relevance of freedom of
expression, we should enlarge constitutional law comprehension to include forms
of political intervention other than those which privilege the “modes and styles of
expression associated with the ‘better’ sort of people—relatively ‘reasonable,’
‘orderly,’ ‘articulate’ speech having ‘social importance’.”153
This extension in the understanding of constitutional law certainly included,
although cannot be solely reduced to, mobs and protests.154 This is clear in
Kramer’s work as one goes through the historical episodes he quotes when
opening The People Themselves.155 As he argues, popular readings of the
constitution, as well as constitutional changes in understanding, have been
achieved not only by procedures constitutionally enshrined in the constitution, but
153
Parker, “Here the People Rule,” supra note 52, at 577. Robert Post has also advocated an extended
vision for freedom of expression. In arguing public opinion is the touchstone of every democratic
government, he claims protected discourses that shape opinion are to be broadly understood and
protected. Thus, political speech comes in different forms and shapes, which “[s]ometimes … occurs
through language, and sometimes, as with picketing and flag burning, it does not.” ROBERT C. POST,
DEMOCRACY, EXPERTISE, ACADEMIC FREEDOM: A FIRST AMENDMENT JURISPRUDENCE FOR THE MODERN STATE
14-5 (2012); See also, TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS, supra note 37, at
106-7 (“I am convinced that a ban on burning flags as a political protest is inconsistent with
fundamental free speech principles.”).
154 Saul Cornell, Mobs, Militias, and Magistrates: Popular Constitutionalism and the Whiskey
Rebellion, 81 CHI.-KENT L. REV. 883 (2006) (arguing popular constitutionalism encompasses a large
spectrum of legal strategies, beings mobs and protests just some strategies among different
options).
155 KRAMER, THE PEOPLE THEMSELVES, supra note 49, at 3-5.
278
also by social mobilization outside institutional channels.156 This is in fact most
obvious, although again not exclusively the case, in situations where, despite
political challengers are in control of local institutions, changes in law prove
difficult if not impossible.157
Post and Siegel hold a similar claim. They acknowledge, as noted above, that
citizens resort to a myriad of methods when it comes time to shape constitutional
meaning. Although Post and Siegel recognize the importance of constitutional
lawmaking and constitutional amendments, they call attention to how citizens
have “sought to embody their constitutional ideals within the domain of judicially
enforceable constitutional law” and other forms that permit a more fluid and
ongoing process of communication between courts and the public.158 Norm
contestation, as they label this process, includes—as Siegel herself has put it—
informal, disruptive, non-institutional, and sometimes unlawful means. In a similar
vein—although assessing popular constitutionalism from a legal theory
viewpoint—, Adler has held that protests, among other mechanisms, establish a
closer link between citizen engagements, their critical appraisal of the constitution,
and the work of officials, which certainly includes constitutional exposition.159
II. Popular institutionalism
156
Id. at 8.
Id., at 26.
158 Post & Siegel, Roe Rage, supra note 133, at 380.
159 Under democratic regimes—he writes—it is almost impossible to think the work of public
officials as totally detached from citizens’ evaluation. Matthew D. Adler, Popular Constitutionalism
and the Rule of Recognition: whose practices ground U.S. Law? 100 NW. U. L. REV. 719, 733-5 (2006).
157
279
This part is intended to clear up some misunderstandings about popular
constitutionalism. Popular constitutionalism, although promising to give the
people a say in constitutional understanding, actually proposes a mediated
process. This means, as I will detail below, that (A) popular readings are channeled
through formal institutions of politico-constitutional decision-making. In other
words, what the people say the constitution means is what the Congress, a
superior court or the President (and his/her administration) says it means when
the respective body or authority enacts a law, passes a decision or enacts an
administrative rule. Therefore, popular constitutionalism does not reject
institutions; rather, it needs them.
This should not be seen (necessarily) as a democratic shortcoming as long as
governmental branches are, in line with what popular constitutionalism
emphasizes, responsive to the people’s views.160 Neither should it prevent us from
asking popular constitutionalism’s possible limits in light of recent waves of
protests. Recent movements of protests have rejected engaging with institutional
politics, thus causing a short circuit with the channels that should supposedly
mediate popular interpretations. In the last section of this chapter, (B) I argue that
these popular interpretations of constitutions might end up being politically nude
views, that is, absent mechanisms of enforcement.
160
As I will show in the next chapter, whereas popular constitutionalism sees this responsiveness
as desirable, a diarchic approach to constitutional interpretation sees the dialogue or dynamic
between institutions and non-institutional forms as a necessity.
280
A. The need for institutions (avenues to be heard)
In Larry Kramer’s depiction of popular constitutionalism the people play a twofold
role. They interpret the constitution, on the one hand, and they are responsible for
seeing that those interpretations are properly implemented, on the other.161
Bearing the people’s interpretative role in mind, I ended the last section noting
popular constitutionalism is certainly sympathetic to non-institutional forms of
participation. I suggested social protests are only one informal means (among
many) of political and constitutional contention or negotiation. While the people
open avenues to speak through social protests, the question that remains to be
answered is where those constitutional interpretations, popularly held and
informally presented, go—if they go somewhere. This is the implementation
question.
Some critics have rightly pointed out that closer attention to the implementation
question may render popular constitutionalism unworkable—or at least not such a
radical departure from the way current democratic institutions (allegedly)
operate.162 Alexander and Solum, for instance, ask who is vested with the “ultimate
authority … to enforce the Constitution.”163 If popular constitutionalism is seen as
“the view that the people themselves are the agents who … enforce … the
Constitution,”164 we should doubt whether the people (can) really act in an
161
KRAMER, THE PEOPLE THEMSELVES, supra note 49, at 7.
Alexander & Solum, Popular? Constitutionalism?, supra note 122, at 1624-5 (calling this option
“trivial popular constitutionalism,” a form “every effective constitutional order is”).
163 Id., at 1603.
164 Id., at 1617.
162
281
immediate way. The people certainly do so when reading the constitution. As
noted above, the people can resort to social protests to advance their own
constitutional understandings. But how do they enforce those interpretations
yielded by popular deliberation?
Alexander and Solum argue there is no way the people can proceed on their own in
enforcing popular interpretations—unless popular constitutionalism is an excuse
to simply dispense with the constitution (text) itself.165 Although they fail to see
the people are not one single body—but comprised of interactions of movements
and countermovements—they correctly argue that the people (“a multiplicity of
inconsistent interpretations”) “require[] an institutional mechanism.”166
To be fair with Kramer—despite his alleged elusiveness in explaining the proper
way in which popular constitutionalism is to operate167—, neither he nor the other
readings of popular constitutionalism argue in favor of disregarding the State and
its institutions. Kramer himself, for instance, notes that it is “‘the people
themselves’—working through and responding to their agents in the
government—who [are] responsible for seeing that [the constitution is] properly
165
Id., at 1620-1. It should be noted, however, that there are certain variants of popular
constitutionalism that do not place such a strong emphasis on the constitution’s text, but call to
conceive the constitution in a broader fashion. See, TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE
COURTS, supra note 37.
166 I take here their emphasis in institutional mechanisms, as I will tell below, simply because that is
what I think is the correct reading of Kramer’s work. This emphasis is not because of their
preoccupation: that a constitution understood as a law needs a “single voice of interpretative
authority.” Id., at 1621. See also, Larry Alexander & Frederick Schauer, On Extrajudicial
Constitutional Interpretation, 110 HARV. L. REV. 1359 (1997) (arguing the Supreme Court is the
constitution’s final expositor if we want to satisfy one of law’s main functions: the settlement
function). But see, TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS, supra note 37, at 27-30
(discussing the settlement function as solely realizable by a superior court).
167 Alexander & Solum, Popular? Constitutionalism?, supra note 122, at 1617-9.
282
interpreted and implemented.”168 Therefore, popular constitutionalism answers
the implementation question by assigning the people a vigilant role. “Through and
responding to their agents in the government,”169 the people are to observe
whether governmental institutions are enforcing their interpretations or not.
Popular constitutionalism, thus, does not seek to wither away the State. Quite the
opposite, it seeks a way to inform official readings of the constitution with popular
interpretations. The emphasis here is on governmental responsiveness.
This is particularly clear when one pays attention to the emphasis authors such as
Mark Tushnet170 and Jeremy Wadron171 place on legislatures as the proper forum
of constitutional interpretation. This is evident when one realizes democratic
constitutionalism of the kind Post and Siegel endorse sees the Supreme Court as an
avenue to channel cultural and popular interpretations of the constitution—and
certainly as an institution whose supremacy is not necessarily conflicting with
popular constitutionalism.172 Undoubtedly, it is also the view of those who assign
the President, and with him the whole administrative bureaucracy, a paramount
role in popular constitutionalist grammar.173 More recent accounts argue popular
constitutionalism lacks an accurate description as to how it is to operate, thus
168
KRAMER, THE PEOPLE THEMSELVES, supra note 49, at 7.
Id.
170 TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS, supra note 37.
171 WALDRON, LAW AND DISAGREEMENT, supra note 77.
172 Post & Siegel, Democratic Constitutionalism, supra note 50; Post & Siegel, Roe Rage, supra note
133; Post, Fashioning the legal Constitution, supra note 127; Siegel, Constitutional Culture, supra
note 132.
173 Franklin, Popular Constitutionalism as presidential constitutionalism?, supra note 145; Purdy,
Presidential Popular Constitutionalism, supra note 145.
169
283
offering an institutional mechanism to render it realizable.174 Finally, this is also
the viewpoint of Kramer himself, who deemed popular constitutionalism to be an
inter-institutional dialogue happening among different branches—all under the
people’s supervision.175
This is precisely what Habermas has argued. Under the conditions of the modern
State, social power, that is, the political meaning developed by the civil society in
the autonomous public sphere, remains nude (of legitimacy) were it not to be
transformed into political power.176 Social power is transformed into political
power “only through institutionalized procedures.”177 Therefore, institutionalized
will-formation, such as the parliament, “depends on supplies coming from the
informal contexts of communication found in the public sphere …”.178 This
interaction—“this fact,” Habermas writes—“makes it impossible to conceive
politics and law as autopoietically closed systems.”179 However, there is an
174 Tom Donnelly, Making Popular Constitutionalism Work, 2012 WIS. L. REV. 159, 162 (2012)
(arguing “the invisible hand of public opinion is not enough” and that popular constitutionalism
needs to advance institutional reforms).
175 KRAMER, THE PEOPLE THEMSELVES, supra note 49, at 252 (“the authority of judicial decisions
formally and explicitly depends on the reactions from the other branches and, through them, from
the public.”); Kramer, “The Interest of the Man,” supra note 125. See also, Post & Siegel, Popular
Constitutionalism, supra note 27, at 1041 (arguing the boundaries between the judicially
enforceable constitution—what they call constitutional law—and the non-judicially enforceable
constitution—what they call the Constitution—is defined by a constitutional dialogue between
judicial and non-judicial actors).
176 HABERMAS, FACTS AND NORMS, supra note 152, at 352-73. I emphasize in this transition the
legitimacy viewpoint stressed by Habermas (a model of society where the communicative power of
public citizens is not bypassed), although he also mentions this transference of social power into
political power is needed as a way to “relieve the public of the burden of decision making” (Id. at
362, his emphasis). According to Habermas, the public sphere acts in a signaling fashion as its
capacity to solve problems “on its own” is limited (359).
177 Id., at 363.
178 Id., at 352.
179 Id.
284
important caveat, for, as experience shows, the transfer of social power into
politically-institutionalized will is not always automatic.180 This is why this
interplay is not relaxed and pacific. In other words, as Cover pointed out, popular
jurisgenerative power is always challenging. This interplay creates a latent
dichotomy between State power (authoritative), on the one hand, and the different
meanings (narratives) the people advance, on the other.181 Most notably,
uncontrolled social narratives have a “destabilizing influence upon power.”182 The
meaning of authoritative precepts, in other words, necessarily “borrow[s] … from
materials created by the social activity that is not subject to the strictures of
provenance that characterized what we call formal lawmaking.”183 This is precisely
the jurisgenerative, and therefore destabilizing, force popular constitutionalism
aims at rescuing.
B. Disregarding the State
Popular constitutionalism rests on the interplay between the people and political
institutions. This presupposes, as the literature on social movements does, that
social protesters engage with political institutions. Although this is regularly the
case, recent waves of protests have taken a different step by disregarding the State
180
I do not want to extend on this point here, but certain readings of popular constitutionalism, as
the one Post and Siegel present, accept that Supreme Court rulings are not always going to be in
line with cultural and popular interpretations. The reason to this is not, as some have argued, that
the people are not a unitary body acting in consensus, but the professional milieu court judges
work in when addressing politico-constitutional issues. Citizens, they claim, “understand that the
rule of law is rooted in professional practices that are distinct from popular politics and that will
often require divergences between the Court’s judgments about the Constitution and their own.”
Post & Siegel, Democratic Constitutionalism, supra note 50, at 27-8.
181 Cover, Nomos and Narrative, supra note 42, at 18.
182 Id.
183 Id.
285
and its institutions, thus breaking down the interplay popular constitutionalism
assumes. Almost every commentator of recent waves of protests highlights their
horizonalism as an internal organization and their rejection to engage in any
dialogue with the State and its institutions.
Reviewing the protests in Greece, for instance, Paul Mason noticed that “[i]n the
people’s minds the regime is already gone … the whole corrupt party system”
which they saw as inept.184 Although protesters did not seek to break down the
State, there is an anomic breakdown: “mass refusals to cooperate with the
system.”185 This is confirmed by Douzinas, who argues anomie appears where
formal laws and institutions attack popular values. This fracture creates only
“extensive disenchantment, fear and aggressiveness.”186 The same might be said
about the indignados in Spain. As Castells reports, the Spanish saw their State as an
“unresponsive political system.”187 By assuming a horizontalist form of
organization, they rejected representation and posed neither specific petitions nor
demands to authorities.188 The different branches of the ‘Occupy’ movement across
North America have been described in similar terms. Some have claimed ‘Occupy’
184 MASON, WHY IT’S STILL KICKING OFF EVERYWHERE, supra note 4, at 88-90. There is no reason to
address the State when the State is already not there (Id., at 229-30).
185 Id., at 103-4.
186 DOUZINAS, PHILOSOPHY AND RESISTANCE, supra note 5, at 50-1.
187 CASTELLS, NETWORKS OF OUTRAGE, supra note 2, at 111.
188 Id., at 120-5.
286
is a movement with anarchist roots with emphasis in rejecting the State and its
institutions, advancing direct action and “acting as if one is already free.”189
Different authors have coined different, although related, terms to describe, and in
a sense support, what these movements do. Professor Douzinas, for one, speaks of
democratic disobedience.190 For him, democratic disobedience seeks a sort of
political healing neither civil disobedience nor protests can provide. Whereas
these latter mobilizations are, or could be, rooted in the constitution and certainly
assume the regime’s legitimacy, democratic disobedience responds to a deeper
sense of injustice.191 Moreover, Douzinas insists, democratic disobedience resorts
to a form of manifestation that cannot be accommodated within the current state
of affairs, but that aims precisely at challenging that very same status quo. As he
puts it, “[d]emocratic disobedience challenges social hierarchy and the flawed
democracy that reproduces it,”192 therefore refusing to engage with current
institutions. Democratic disobedience “challenges current policies,”193 something
civil disobedience and protests also do in a sense, “but goes beyond them to the
social conditions and institutional arrangements that [have] allowed their
dominance.”194
189 David Graeber, Occupy Wall Street’s Anarchist Roots, in THE OCCUPY HANDBOOK 141, 144-5 (Janet
Byrne ed., 2012).
190 DOUZINAS, PHILOSOPHY AND RESISTANCE, supra note 5, at 93-6.
191 Id., at 95.
192 Id.
193 Id.
194 Id.
287
Bernard Harcourt, for another, has termed it political disobedience.195 After
stressing—in line with Douzinas—civil disobedience’s respect for institutions and
the legal order, Harcourt explains that political disobedience “resists the very way
in which we are governed.”196 This is why occupiers and indignados, among others,
have neither an agenda nor a set of petitions to be submitted before political
authorities, for political disobedience actually “turns its back on the political
institutions and actors who govern us.”197 Political disobedience refuses to engage
with authorities in reformist-policy-talk198 which can only result, this position
contends, in furthering the effects of domination. By quoting Foucault, Harcourt
argues that “[a]s soon as one ‘proposes’—one proposes a vocabulary, an ideology,
which can only have effects of domination …”.199
There are also those who, like Raffaele Laudani, account more generally for
disobedience.200 Although not explicitly related to current waves of protests,201
Laudini speaks of destituent power.202 Once again, as both Douzinas and Harcourt
do, Laudini distances destituent power from civil disobedience, this latter being a
195
Bernard Harcourt, Political Disobedience, in OCCUPY: THREE INQUIRIES IN DISOBEDIENCE 45 (W.J.T.
Mitchell et al. eds., 2013).
196 Id., at 47.
197 Id.
198 Id., at 59-61.
199 Id., at 58.
200 RAFAELLE LAUDANI, DISOBEDIENCE IN WESTERN POLITICAL THOUGHT. A GENEALOGY (2013).
201 Laudini does mention current protest movements when accounting for contemporary forms of
disobedience. Id., at 6. However, Adam Sitze, who wrote the foreword, directly establishes the link
between current movements that “consciously refuse[] to carry out the constituted laws and even
the law-constituting authority of those who hold formal political power,” and Laudini’s destituent
power. Adam Sitze, Foreword, in LAUDANI, DISOBEDIENCE IN WESTERN POLITICAL THOUGHT, supra note
200, at vii.
202 LAUDANI, DISOBEDIENCE IN WESTERN POLITICAL THOUGHT, supra note 200, at 4-5.
288
rather moderate form of dissent which “does not put the existing order in
discussion.”203 Destituent power is different. It encompasses constituent power’s
creative energy, in the sense of being a force or will aimed at constituting a new
order—a new order which is created out of nothing (ex nihilo).204 Nonetheless, it
also comprehends the possibility of a political potency that takes place not in a
vacuum, as Laudini sees the constituent power, but against a background of
“institutional chains that limits its full expression.”205 Furthermore, different from
the constituent power, which ultimately succeeds as it institutionalizes (i.e. the
constitution) its goals, destituent power operates as an extra-institutional potency
that does not have an institutionalizing end.206
Critical voices have already warned about the dangers of movements falling in love
with themselves,207 dismissed the political character of movements’ riots,208 and
criticized their naïve approach to politics.209 I want to argue in a different, although
related, line. I want to suggest that this withdrawal from institutions—to take
Mouffe’s terminology210—prevents these movements from speaking properly in
constitutional terms.211 More concretely, this withdrawal impedes mobilizations
203
Id., at 6-7.
Id., at 4.
205 Id.
206 Id., at 5.
207 SLAVOJ ŽIŽEK, THE YEAR OF DREAMING DANGEROUSLY 77-9 (2012).
208 ALAIN BADIOU, THE REBIRTH OF HISTORY. TIMES OF RIOTS AND UPRISINGS 22-6 (Gregory Elliott trans.,
Verso 2012).
209 CHANTAL MOUFFE, AGONISTICS. THINKING THE WORLD POLITICALLY 65-84 (2013).
210 Id., at 65.
211 As I said at the beginning, I’m not arguing recent movements have sought, but failed to achieve,
constitutional redemption. What I’m arguing is that their claims are related to structural issues we
care the most about and that those issues are constitutional precisely in that sense and because—as
204
289
from contesting hegemonic constitutional readings that stand adamant against
their claims.
Popular constitutionalism assumes popular readings are not only to be
institutionally linked, but also—crucially importantly—public-oriented. As noted
above, this means popular constitutional readings are not totally free but are to
respect what Siegel terms the ‘public value condition.’212 Proposing a new
(counter-hegemonic)
constitutional
reading
presupposes
“constitutional
understandings that the community recognizes and shares.”213 Partisan
contentions, therefore, are to be translated “into language of a common
tradition.”214 This is what social movements do. As Claus Offe has put it, new social
movements do not contend those shared values, “but the mode of implementation
of values.”215 They do so not by aiming to become isolated or displaced, but
political; movements want their means to be recognized as legitimate and their
ends to “become binding for the wider community.”216 In other words, those
shared constitutional traditions, under which new interpretations are presented
from below, are the concepts mobilizations (and counter-mobilizations) strive to
conceptualize.
I shall say now—they should have a broader impact if they do not want to remain as merely
insulated/tolerated.
212 Siegel, Constitutional Culture, supra note 132, at 34.
213 Id., at 34.
214 Id., at 35. As argued before, this common tradition or constitutional understanding is comprised
not only of the words of the constitution itself, but also of those constitutional (unwritten)
conventions.
215 Claus Offe, New Social Movements: Challenging the boundaries of Institutional Politics, 52 SOC. RES.
817, 849-50 (1985).
216 Id., at 826-7.
290
This means that popular constitutional meaning is created in a two-step process:
(a) a first step, where civil society deliberates and acts independently from
the State (an autonomous public sphere where movements and countermovements take place)217 in order to deconstruct hegemonic constitutional
readings, and
(b) a second step, where these popular readings (deconstructions and rearticulations of former interpretations) are taken by the State and its
institutions to be transformed from social power into political power.218
Some voices have defended current protest movements taking this withdrawal
path. I will consider a couple here. Professor Costas Douzinas has argued—against
Badiou—that recent riots and movements should not be dismissed as nonpolitical, but understood as a political baptism, a sort of first step preparing,
although not guaranteeing, the path towards the total reconfiguration of the
political system.219 In order to achieve this goal movements should first heal the
social ethos already fractured by a misguided formal regulation so that formal
institutions can be redesigned.220 In a related vein, Manuel Castells suggests recent
movements are to be understood, not as seeking short-term benefits, but as
pursuing deeper changes not achievable through formal politics.221 This is the case,
he argues, despite local specificities, of Spanish indignados, Greek aganaktismenoi,
217
Siegel, Constitutional Culture, supra note 132, at 40-3.
MOUFFE, AGONISTICS, supra note 209, at 79-82.
219 DOUZINAS, PHILOSOPHY AND RESISTANCE, supra note 5, at 77-84.
220 Id., at 50-1.
221 CASTELLS, NETWORKS OF OUTRAGE, supra note 2, at 133.
218
291
and the different ‘Occupy’ branches. They have turned their backs on the State in
order to “raise[] consciousness among its participants and in the population at
large.”222 Gatherings, protests and public assemblies were not means of pressure
to call governmental attention, “but a goal in themselves”223 as they collectively
pursued “cultural change.”224 As Castells puts it, the process is the product, not the
means.225
From a popular constitutionalist perspective, above depicted as a two-step
process, these movements are anchored at, and refuse to leave, the first step.226
The question is how long they will remain there, provided they stay mobilized.
Furthermore, and perhaps contradictorily, both Douzinas and Castells argue the
long-term process of change is likely to lead in last instance to (an unavoidable)
interaction with the State. Douzinas, as noted above, contends one of the reasons
that best explains the recent uprisings is precisely the lack of attention formal
institutions have paid to different social ethoi.227 The great mistake of several
governments—the Greek included—has been answering protests with legality,
both criminalizing (and aiming at delegitimizing) social protest and calling the
people to respect formal rules.228 Castells has put forth a similar defense.229
222
Id.
Id., at 134.
224 Id., at 193.
225 Id., at 143-4 (arguing movements saw, and still see, the questioning of concrete
accomplishments as the logic of capitalism).
226 I shall note below the dangers of becoming isolated and marginalized from the institutional
avenues where power relations are crucially defined.
227 DOUZINAS, PHILOSOPHY AND RESISTANCE, supra note 5, at 54 (arguing resistance appears where
formal rules have been passed without having first persuaded the people).
228 Id., at 50.
223
292
I agree with all this. What seems unavoidable, however, is eventually engaging
with the State and its institutions (law included) to bring them in accordance with
social norms,230 either by pushing current institutions to pay attention to popular
demands231 or to experiment with institutions—in fact, social movements have
made, and can make, enormous contributions in helping us to abandon what Unger
called the “false necessity” of accepting institutions in their current shape.232 In
other words, current waves of mobilization have had an important role in
highlighting the gross malfunctioning of Western democracies. But as Chantal
Mouffe has clearly put it,
this is only the beginning, and to effectively transform power relations, the
new consciousness that arises out of those protests requires institutional
channels.233
229
CASTELLS, NETWORKS OF OUTRAGE, supra note 2, at 5-10, 142.
The relation between institutions, law and culture, however, depends on several variables. First,
those relations are certainly permeated by what we consider law to be and what we deem as
cultural. Second, it is worth noticing the relations between culture and law are not unidirectional,
always flowing from the bottom (from culture) up (to formal institutions), but a mixture of
interrelations where formal institutions also play their part—as “tool[s] of social engineering to
accomplish politically desirable purposes … and [also] to revise and reshape culture.” Robert C.
Post, Law and Cultural Conflict, supra note 131, at 487. See also, Sarat & Simon, who have argued
legal meanings are not “invented and communicated in a unidirectional process.” Austin Sarat &
Jonathan Simon, Beyond Legal Realism? Cultural Analysis, Cultural Studies, and the Situation of Legal
Scholarship, 13 YALE J. L. & HUMAN. 3, 19-20 (2001).
231 MOUFFE, AGONISTICS, supra note 209, at 111 (actual changes in relations of power will not be
brought about “get[ting] rid of representative institutions but improv[ing] them, so as to make
them more accountable to the citizenry.”); Robert B. Reich, Occupy Democracy, in OCCUPY HANDBOOK,
supra note 189, 362 (“Our problem isn’t government; it’s who government is for.”).
232 ROBERTO UNGER, DEMOCRACY REALIZED: THE PROGRESSIVE ALTERNATIVE 1-27 (1998).
233 This is clear in the work of Mouffe, who argues the emerging consciousness requires
institutional channels to effectively transform power relations. MOUFFE, AGONISTICS, supra note 209,
at 115. In a similar sense see, Sarat & Simon, Beyond Legal Realism?, supra note 230, at 20
(conceptualizing legal meanings as “moving” hegemonies); UNGER, DEMOCRACY REALIZED, supra note
232, at 26 (“there is no fixed inverse relation between political institutionalization and political
mobilization.”).
230
293
There is a second turn the defense of the withdrawal strategy can take. Protesters
could argue their movements are to remain local constitutional interpretations
whose target does not need to be the State.234 I’m not saying that this is what
identity movements claim to be doing, but there is some resemblance and I take
some insight from them. Van Dyke et al. have argued against those who suggest
that every social mobilization targets the State, pointing out that certain protests
instead focus on civil society itself.235 For them, “public protest is also used to
shape public opinion, identities, and cultural practices and to pressure authorities
in institutional arenas not directly linked to the state.”236 These expressive or
identity protests, therefore, are “oriented primarily to cultural transformation and
identity recognition through expressive actions and alternative institution
building.”237 Both Douzinas and Castells, as noted above, make a similar claim
regarding current waves of protests. They emphasize the non-institutional
processes as the message, which means protesters are not interested in posing any
specific demands to the State and its institutions. In order to create free
communities, autonomous from corrupted governments, the targets are their
fellow citizens238—an objective allegedly realized in local assemblies.
234
Some have persuasively argued that this turn to locality was triggered by a global
disempowerment. This is the case of Sparke who, although focusing on the use of spaces to increase
presence, notes this shift also showed global ties. Matthew Sparke, From Global Dispossession to
Local Repossession: Towards a Worldly Cultural Geography of Occupy Activism, in THE WILEYBLACKWELL COMPANION TO CULTURAL GEOGRAPHY 387 (Nuala C. Johnson et al., eds. 2013).
235 Nella Van Dyke et al., The Target of Social Movements: Beyond a focus on the State, 25 RESEARCH IN
SOCIAL MOVEMENTS, CONFLICTS AND CHANGE 27 (2004).
236 Id., at 27.
237 Id., at 31.
238 CASTELLS, NETWORKS OF OUTRAGE, supra note 2, at 6.
294
First of all, as argued above, it is not at all clear that cultural changes occur
independently from the State and its institutions.239 Second, one could also venture
that if identity and expressive and consciousness-raising movements are aimed at
(re)shaping public opinion, in the long (or sometimes in the short) run the State
should be responding to these transformations.240 What I want to stress here,
however, is a rather different question. I want to highlight whether these local
constructions of the constitution can be understood as constitutional
interpretations or as something else (which is dangerous for the movement itself).
I think the latter is the case, for these constructions rest on hegemonic
interpretations that these movements refuse to institutionally contest. By doing
this they risk becoming marginal and isolated gatherings that are, in the most
optimistic case, tolerated by the State.241
Robert Cover is of enormous help again. According to Cover, local communities
acting autonomously (that is independent from representative avenues) exercise
their jurisgenerative capacity to create law “as fully as does the judge.”242
Ultimately, though—Cover writes—, it is “the state’s capacity to tolerate or destroy
239
Post, Law and Cultural Conflict, supra note 131, at 488-9 (arguing how antidiscrimination laws
have been used to “revise and reshape culture”).
240 In fact, recent demonstrations impacted electoral processes in Greece, Iceland and Spain.
However, it should be noted—as Castells does—that these were side effects. CASTELLS, NETWORKS OF
OUTRAGE, supra note 2, at 138-9.
241 Legal and constitutional considerations aside (that is, I am not passing judgments as to whether
governmental decisions were constitutional or not), most of the movements continued to occupy
public spaces as long as States allowed them to do so. Contradicting their withdrawal discourse,
many groups sought help from the State itself through courts, even when they declared to be acting
“as if” the State was already gone. See, Graeber, Occupy Wall Street’s Anarchist Roots, supra note
189, at 148-9.
242 Cover, Nomos and Narrative, supra note 42, at 28.
295
this self-contained nomos that dictates the relation” of the local community in
question and its “political host.”243 Cover notes there are many reasons, partly
principled (he mentions the freedom of association) and partly prudential (to
avoid conflicts of certain, although indeterminate, political significance) reasons, to
accommodate these local nomoi. However, when these reasons are principled and
adopt the form of constitutional rights protection (the same freedom of association
Cover mentioned, to name one), it should be noted that the political standing of
“this self-contained nomos” is extremely precarious. For one, the State’s capacity to
destroy its local nomos persists—as experience showed, public occupations lasted
as long as the State tolerated these manifestations. For another, either the
toleration or destruction of these local nomoi depends on a constitutional
interpretation which movements that withdraw do not contribute (precisely
because they do not engage) to shape, but that accept as given.
In other words, it is not the movement’s mobilization what leads to a constitutional
reading that grants the movement this (however) precarious toleration; rather,
what accommodates the movement’s grievances is precisely (what they correctly
see as a) top-down hegemonic constitutional reading which movements have
nonetheless refused (sometimes because of reasonable dissatisfaction) to directly
contend.244 By refusing to engage with the State and its institutions, movements
243
Id., at 30.
As Teubner put it—criticizing those who pay exclusive attention to State-centered and
institutional solutions—, “[l]iberal constitutionalism could conceal the question in the shadow of
constitutionally-protected individual freedoms.” GUNTHER TEUBNER, CONSTITUTIONAL FRAGMENTS:
244
296
undoubtedly run the risk of becoming marginal political actors (what many say is
the current case of ‘Occupy’) or, at best, being merely tolerated or concealed
(before being evicted). This is why Cover was concerned about calling local nomoi
to transcend their inner boundaries and “reach[] out for validation and seek[] to
extend [their] legitimacy by gaining acceptance from the normative world that lies
outside its core.”245 Redemptive constitutionalism—a term Cover coined—is
precisely that: a move from the inner core to overcome isolation and mere
toleration in order to “change the world in which they live.”246 Redemptive
constitutionalism calls social movements to leave their sectarian fashion in order
to advance the vision of the world as they see it. Cover notes that, by moving out of
sectarianism, redemptive movements aspire to the replacement of one reality with
another,247 and Mouffe joins him in arguing that counter-hegemonic intervention
needs institutions “to re-articulate a given situation in a new configuration.”248
Exodus from institutional politics neglects social movements’ conservative and/or
transformative capacity.249 Social protest movements that remain insular (by self-
SOCIETAL CONSTITUTIONALISM AND GLOBALIZATION 6 (Gareth Teubner trans. Oxford University Press
2012).
245 Cover, Nomos and Narrative, supra note 42, at 33.
246 Id.
247 Id., at 34.
248 MOUFFE, AGONISTICS, supra note 209, at 79. This is also the argument Claus Offe made. For him,
“purely social movements” as religious sects “make use of perfectly legitimate and recognized
forms of action, such as the legally guaranteed freedom of religious practice and cultural freedom.”
However, these groups do not become political as they “do not intend to win the recognition of
their specific values and concerns as binding for the wider community but simply claim to be
allowed to enjoy the rights and freedoms.” Offe, New Social Movements, supra note 215, at 827.
249 That is the recognition that legal meanings are an ensemble of practices and discourses that can
be mobilized either to reproduce or transform the conditions of living. Dorothy E. Chunn & Dany
297
choice) will risk bringing their constitutional visions into reality, thus remaining
subject to the arbitrariness of the State, which they assume to be immutable and
therefore to be abandoned.250 The best antidote to arbitrariness lies precisely in
engaging with formal outcomes. As G. A. Cohen put it when commenting on the
relation between the economic structure and the legal superstructure,
bases need superstructures … regulation and order are themselves
indispensable elements of any mode of production, if it is to assume social
stability and independence from mere chance and arbitrariness.251
Conclusions
Popular constitutionalism, here roughly presented, is to be praised for having
sought to rescue the role of (and for) the people in constitutional interpretation.
Standing against what has been termed ‘juricentric constitutions,’ popular
constitutionalists, despite the differences noted above, agree on contending the
view of those who see courts as the exclusive guardians and interpreters of
constitutions. Under this approach, constitutions are political matters and thus
open to popular readings.
The fact that constitutions are opened to popular interpretations does not mean,
however, that institutional branches are out of the picture. In fact, popular
Lacombe, Introduction, in Law as a Gendering Practice 2, 6-8, 11 (Dorothy E. Chunn & Dany
Lacombe eds., 2000).
250 MOUFFE, AGONISTICS, supra note 209, at 124-5.
251 G. A. Cohen, Base and Superstructure: A Reply to Hugh Collins, 9 OXFORD J. LEGAL. STUD. 95, 99-100
(1989).
298
constitutionalism—as I have argued—depends to a large extent on the regime
remaining in place and therefore on the functioning of governmental institutions.
Popular constitutionalism contends that these institutions produce their
constitutional interpretations in a responsive fashion.
To whom are they to be responsive? To the people. Popular constitutionalism
requires an active citizenry. It demands an active civil-political society be attentive
to constitutional matters, on the one hand, and in fluid, although tense, dialogue
with governmental institutions, on the other. By drawing on the insights from
popular constitutionalism, I have shown that social protests are but one of the
means—although currently a very important one—the people themselves resort
to in order to participate in the popular interpretation of constitutions. Social
protests are thus a means through which the people take part in shaping public
opinion, a powerful reason why States should pay more attention to protesters’
contentions and why attempts to suppress them are to be regarded with suspicion.
In the next and final chapter, I will explore the nature of this institutional
responsiveness.
Whereas
I
think
popular
constitutionalism
sees
this
responsiveness as something desirable, the fact that it is a mediated form of
popular constitutionalism signals it is also contingent, that is, it may or may not
happen. By exploring the duty of the people to submit their view to institutional
avenues (what I term the democratic burdens on social protests), I will explore the
correlative institutional duty—not just the mere option—to establish a dialogue.
299
CHAPTER 6
PROTESTS AND INSTITUTIONS: TAKING THE CONSTITUTION WHERE?
I. Democratic burdens on social protest
A. The constitutional burdens on social protests
B. A democratic burden
II. Institutional popular constitutionalism
A. The diarchic character of constitutional interpretation
B. Democratic internal viewpoint
Introduction
“ … what would follow is only the demand for a constitution having within itself the
characteristic and principle of advancing in step with consciousness, with actual man, which
is possible only when man has become the principle of the constitution.”
Karl Marx∗
In Chapter 1, I argued that the sociological literature on social movements, being
social protest one of the means movements resort to, shows that popular
∗
CRITIQUE OF HEGEL’S ‘PHILOSOPHY OF RIGHT’ 20 (Joseph O’Malley ed. Cambridge University Press 1982
rep.) (1843).
301
movements are (almost inextricably) related to the State; the State both influences
and is influenced by social movements. In this sense the State and its institutions
are the target of social movements—they seek to influence their march—but not
their enemies—they do not seek to overthrow them.
I have included constitutions under this very same analysis and proceeded from
there to distinguish a mixture of protests and related events that have been taking
place during the last five years or so. While allegedly based on similar reasons,
from a constitutional law viewpoint these social protests movements are different.
On the one hand, I identified revolutionary movements, such as those of the ‘Arab
Spring,’ that were aimed at overcoming constitutional schemes the people had
been living under. The constitutional fact—as I termed it in Chapter 2—of having
produced new constitutions signals that a radical (in constitutional terms)
objective was achieved. On the other hand, there were social protest movements
whose aim was more modest, albeit tremendously important. These movements, I
argued, wanted to influence constitutional interpretation by advancing their own
readings of constitutions. Different from revolutionary movements, which pursue
the enactment of brand-new constitutions, these protesters have played within the
constitutional rules already laid down. This was (and still is) the case, to name one,
of Chilean students that have been mobilizing since 2006.
Bearing this difference in mind it is possible to notice that constitutional law
relates to social protest in, at least, two different ways. Resembling the sociological
analysis of social movements, and the annotated relation between them and States
302
and vice versa, I argued constitutions influence social protests and social protests
influence constitutions. First, social protest movements that come to terms with
the existence of the State and its institutions, the very constitutional scheme they
seek to influence, can claim institutional protection for their non-institutional
actions. This is what I argued in Chapters 3 and 4 when showing how Western
constitutional schemes of rights (should) protect the (positive) right to protest.
The State and its institutions, seen in this light, permit protests (and limit them as
well) by opening institutional avenues (such as courts) to redress limitations on
citizen participation.
The relation between social protests and constitutions, however, is not merely
limited to the protection (and regulation) of the right to protest; it also flows in the
other direction as well. Social protests influence constitutional interpretation. As I
argued in Chapter 5, citizens’ readings of constitutions that are proposed through
social protests also impinge constitutional understanding. This is the very sense in
which social protests influence the way constitutions end up being understood.
Social protests read through the glass of popular constitutionalism—I ended up
suggesting in Chapter 5— are forms of playing by the rules1 or, as I argued by
resorting to the words of Philip Pettit, forms of political contestation that assume
the regime remaining in place.2 In fact, despite popular constitutionalism
highlighting the role, many times devaluated, of the people themselves in
1 A form of playing by the rules that seeks to substantively influence those very same rules by
enhancing both its democratic and political understanding.
2 Philip Pettit, Legitimacy and Justice in Republican Perspective, 65 CURRENT LEGAL PROBLEMS 59, 62
(2012)
303
producing constitutional understanding, its many variants also acknowledge the
need for institutions. Popular constitutionalism certainly democratizes the
understanding of constitutional law, but it does not replace it with popular
practices that, getting rid of institutions, ground constitutional law.3 Popular
constitutionalism is better depicted as a sort of popular institutionalism. Popular
constitutional readings, such as those the people pose through protests, are
directed at, and mediated by, institutional politics.4 Put in other words, popular
readings of constitutions are rather nude interpretations whose normative force
depends, to a large extent, on their institutional back-up. It is when both popular
understanding of constitutions and institutional decisions meet—and not
necessarily when they coincide—that the role of the people is vindicated.
It is because popular constitutionalism accepts, to the extent it does not radically
contest, institutional dependence that non-institutional forms of participation,
such as social protests, are not forms of populism. According to Richard Bellamy, it
is populism—which tends to be “anti-system … a straight appeal against it”—what
besets Habermas’ reliance on social movements as democratic input into the
constitutional system.5 Social movements, Bellamy contends, have little incentive
3 To put it in the words of Matthew Adler, popular constitutionalism is about the “structure of
constitutional decisionmaking” and its content, and not about the practices constitutional law must
rest upon. Matthew Adler, Popular Constitutionalism and the Rule of Recognition: Whose Practices
Ground U.S. Law? 100 NW. U. L. REV. 719, 798 (2006).
4 I have taken the concept of mediated popular constitutionalism from Barry Friedman, Mediated
Popular Constitutionalism, 101 MICH. L. REV. 2596 (2003).
5 RICHARD BELLAMY, POLITICAL CONSTITUTIONALISM: A REPUBLICAN DEFENCE OF THE CONSTITUTIONALITY OF
DEMOCRACY 139 (2007).
304
“to relate their demands to those of others within the political community …”.6
However, this is not what popular constitutionalism is about.7 As I have been
arguing here, popular constitutionalism needs institutions, and the emphasis it
places on public opinion is to bring the people back to their crucial constitutional
role: that of being final arbiters of constitutional disputes. According to popular
constitutionalists, and depending on their different emphasis, this is a role that the
people are to play either in the political (legislatures and executives) or the judicial
branch. At any rate, this is a role to be played not dispensing with institutions but
engaging with them. Popular constitutionalism’s thrust depends, to a large
extent—as I ended up arguing in the last section—, on keeping an open, however
robust, tense, and at times unpleasant, dialogue with formal institutions.
However, it is this very reliance on institutions and a certain ambiguity as to the
nature of this institutional responsiveness what may take us to conclude that
popular constitutionalism does not change things very much. In the best scenario,
it merely claims institutional avenues should be permeated with popular
interpretations without contending the sovereign character of institutions as
constitutional expositors. I believe institutions serve a different purpose. They
allow popular understandings of constitutions to be open to all citizens by offering
channels where exclusion is not permissible. Seen in this light, as I proceed to
6
Id.
See generally, NADIA URBINATI, DEMOCRACY DISFIGURED: OPINION, TRUTH, AND THE PEOPLE (2014)
(arguing that, to the extent social movements do not seek to overcome political institutions, but
rather engage with them, they are “consistent with the diarchic nature of representative
democracy.”). See also, Hanspeter Kriesi, The Populist Challenge, 37 WEST EUROPEAN POLITICS 361,
363 (2014) (arguing that, in general, “populism has a strong anti-institutional impulse …”).
7
305
argue now, the rule of recognition may, in a sense, be altered—or at least
democratized. Amid intense popular participation (although of course this is not
always the case), constitutional interpretation cannot be solely located at the
institutional level; it needs to be located at the institutional level in conjunction
with popular and non-institutional practices. It is true that the fact that popular
meanings are transformed into political power by institutions signals these
interpretations are constitutional—instead of nude popular readings. However,
the importance of this process is not the mere fact that these readings have
become either embraced or accepted by the State and its institutions, but the
political fact that institutions are under the duty to engage in a dialogue with
popular readings, therefore rendering these readings attributable to the people
(the author) as a whole—and not just to a faction of it.8
The (I) first part of this chapter furthers this argument. It insists on the relation
between social protests as constitutional interpretations and governmental
institutions. I will claim that this relation is not merely strategic (it helps to
consolidate social changes) nor contingent (this is the way our polity is), but a
necessary step for popular readings to be(come), properly speaking, constitutional
interpretations. This is what I call a democratic burden on protesters and the only
8
Quentin Skinner, The Genealogy of the Modern State 162 PROC. BRIT. ACAD. 325, 344-5 (2009)
(detailing representation in Hobbes as one of the conditions the modern State exhibits). See also,
MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS 181-2 (1999) (arguing the
“Constitution belongs to us collectively, as we act together in political dialogue with each other—
whether we act in the streets, in the voting booths, or in legislatures as representative of others”);
CARL SCHMITT, CONSTITUTIONAL THEORY 239-41 (Jeffrey Seitzer trans. & ed., 2008) (noting that there is
no State without representation and arguing citizenry to be understood as public-, rather than
private-, interest oriented).
306
way, as I will argue in the second part (II), in which their popular understandings
can be redirected from a partisan group of protesters to the people as a whole,
therefore being universalized (in a constitutional fashion). This interplay, I will end
up arguing, also serves to democratize our constitutional practices.
I. Democratic burdens on social protest
This part contends protesters have democratic burdens they should respect; these
burdens stem from the fact we are social creatures who organized around common
institutions and from conceiving constitutions as common commitments. It
therefore takes constitutions, States, and institutions, and the very fact people are
social creatures, for granted.9 It assumes “[y]ou are condemned to life in a polity as
a matter of historical necessity”10 and, at the same time, that that very fact does not
(automatically) amount to domination.11 In other words, it assumes political
associations.12 As professor Ronald Dworkin put it,
9
PHILIP PETTIT, JUST FREEDOM. A COMPASS FOR A COMPLEX WORLD 116 (2014).
Id. at 117.
11 Id. at 117-9.
12 It assumes political associations without assuming the modern “nation-state is … the natural and
necessary representation of modern society.” Daniel Chernilo, The critique of methodological
nationalism: Theory and history, 106 THESIS ELEVEN 98, 99 (2011).
10
307
governments do exist, their boundaries and hence claims of dominion are
the product of historical accident, and almost all of us are born or brought
into one of them.13
What this approach suggests is the possibility of evaluating the State and its
institutions—in their indifference or subjection to law,14 in the fairness or injustice
of their decisions,15 in their responsiveness to the people’s views, and so on.16 As
Axel Honneth has argued, this is a normative account that enables us to test the
legitimacy of the State and its decisions.17 Otherwise, as he claims, we would be left
without tools for evaluating (what we now consider) advances such as the
13
RONALD DWORKIN, JUSTICE FOR HEDGEHOGS 317-8 (2011) (terming debates about imagining people
living in a pre-civil State condition as “a philosopher’s parlor game[s]”).
14 BLANDINE KRIEGEL, THE STATE AND THE RULE OF LAW 5-8 (Marc A. LePain & Jeffrey C. Cohen trans.
Princeton University Press 1995) (calling “vulgar anti-statism” the approach that considers the
mere existence of a State as a form of despotism).
15 PETTIT, JUST FREEDOM, supra note 9, at 116-20.
16 While here I am not considering, as I have repeated through this work, the political reasons we
(might) have to obey the constitution, the State, and its institutions—nor when those reasons cease
to hold—, these are undeniably related topics. In fact, this is, up to a certain point, part of what
popular constitutionalism holds—and what I analyzed in Chapter 5. To summarize the argument:
popular constitutionalism sees conflict and popular understandings advanced through noninstitutional means as the necessary inputs constitutions are to permit if they wish to preserve
their legitimacy. Under this approach conflict is neither to be eradicated nor feared as it is the very
source of constitutional stability. However, this does not mean that the people are to accept
whatever constitutional outcomes may come. This is how professor DWORKIN, JUSTICE FOR
HEDGEHOGS, supra note 13, at 323 put it:
These particular policies may stain the state’s legitimacy without destroying it altogether.
Its legitimacy then becomes a matter of degree: how deep or dark is that stain? If it is
contained, and political processes of correction are available, then citizens can protect their
dignity—avoid becoming tyrants themselves—by refusing so far as possible to be party to
the injustice, working in politics to erase it, and contesting it through civil disobedience
when this is appropriate.
Therefore, faith in constitutions and in the institutional and legal systems citizens live by is one
thing and shall not be confused with idolatry. Once faith in the actual chances of influencing
constitutional understandings ceases, “[i]f the stain is dark and very widespread, and … protected
from cleansing through politics,” (Id.) the legitimacy of the State gets critically shaken. “Revolution
… is then in the cards” (Id. at 321).
17 AXEL HONNETH, FREEDOM’S RIGHT. THE SOCIAL FOUNDATIONS OF DEMOCRATIC LIFE 306 (Joseph Ganahl
trans. Columbia University Press 2014).
308
extension of the franchise to women.18 Denying this evaluative stance would leave
us with no tool to judge “the progress and the regressions” of the State in light of
its normative achievements.19 Moreover, without this evaluative approach we
would be forced to accept the State’s extra-legal violence “as entirely normal
application[] of state power.”20
The following sections show (A) the constitutional burden is defined by a certain
understanding of constitutions as common commitments, rather than as empty
frameworks to be captured by whoever happens to succeed in doing so. It explains
that (B) this understanding poses on protesters the democratic burden of
respecting political equality, which—I end up claiming in this section—institutions
help to secure. Whereas this (political) duty to engage stems from a burden placed
on citizens, it also explains why institutional openness to dialogue cannot be
merely optional.
A. The constitutional burdens on social protests
When social protesters engage in constitutional interpretation they do so to
propose an understanding of constitutions. Whether written or not, whether
limited to a canonical text called ‘The Constitution’ or to a set of important
practices we regard as constitutional,21 constitutional interpretation requires a
common point of departure. In this regard, constitutional interpretation amounts
18
Id. at 307.
Id.
20 Id. at 308.
21 What the word constitutional distinguishes, Waldron argued, are “issues in terms of their
importance.” JEREMY WALDRON, THE LAW 69 (1990).
19
309
to bringing forward an understanding of what already is a common (yet certainly
contested as to its specific contours) ground.22 On the other hand, it is only by
offering an account of common concerns that social movements actually exert a
popular influence.23
It is this common ground, along with its practices and concerns, what I think
professor Reva Siegel had in mind when presenting what she considers to be the
conditions social movements must meet in order to influence constitutions—
excuse the redundancy—in a constitutional fashion.24 According to Siegel, social
movements influence constitutional interpretation by guiding, in myriad ways that
include protests, officials whose actions expound our most basic commitments.25
This is what she terms constitutional culture: “the understandings of role and
practices of argument that guide interactions among citizens and officials in
matters concerning the Constitution’s meaning …”.26 These interactions are what
ground constitutional understanding.27
But if a mobilized group brings its interpretation into the constitution, wouldn’t it
be acting as a faction or an interest group whose influence must be checked? How
could we distinguish between illegitimate groups advancing their own parochial
interests, no matter how public-oriented they are presented to be, from those
22 As I hope it is clear, I’m restricting myself to the analysis of constitutional interpretation. This
emphasis should not mislead our analysis to (falsely) believe that that very framework is placed
“beyond challenge” (Id. at 81-2).
23 PHILIP PETTIT, ON THE PEOPLE’S TERMS: A REPUBLICAN THEORY AND MODEL OF DEMOCRACY 227 (2012) .
24 Reva Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case
of the de facto ERA, 94 CAL. L. REV.1323 (2006).
25 Id. at 1323-1325.
26 Id. at 1325.
27 Id.
310
pointing toward the common understanding? Certainly, “[c]onstitutional culture
both licenses and limits [constitutional] change.”28 What are the limits? What are
then the conditions social protests movements must meet to constitutionally
influence constitutional understanding? Siegel mentions two conditions: the
consent condition and the public value condition.29
The consent condition, roughly put, requires those contesting constitutional
meanings to advance their views “by conviction rather than coercion … [they] must
advance their views without resort to violent coercion.”30 This does not mean that
constitutional interpretations cannot be presented “in procedurally irregular,
disruptive activities in an effort to make themselves heard, at times using unlawful
conduct for their purposes,”31 as it the case of social protest. Instead, it means
these disruptive, and sometimes even illegal means, are mobilized in order to
persuade and convince rather than to impose, coerce and force.
The public value condition, on the other hand, imposes on popular readings the
duty to situate their constitutional understandings on the larger constitutional
picture. In Siegel’s words, it “requires advocates to justify new constitutional
understandings by appeal to older constitutional understandings that the
28
Id. at 1327.
Others have preferred to distinguish by looking to the substantive differences between social
movements and interest groups. This is the case of Lani Guinier & Gerald Torres, Changing the
Wind: Notes toward a Demosprudence of law and social movements, 123 YALE L. J. 2740, 2745, 275662 (2014).
30 Siegel, Constitutional Culture, supra note 24, at 1352.
31 Id. at 1355.
29
311
community recognizes and shares.”32 This condition requires challengers to not
defer to current understandings, but to consider and engage with them.33 As some
have argued, this could help trigger an evaluation of whether these current
understandings better answer our founding constitutional commitments as of
today.34 However, to insist, for this evaluation to be constitutionally permissible—
or, in the words of professor Dworkin, ‘fair’35—it has to be channeled through
“principles and memories of a constitutional tradition.”36
In Siegel’s words, the consent and the public value conditions work as disciplining
“the way that movements make constitutional claims to others who do not share
the movement’s interests and aims.”37 These conditions permit taking the
32
Id. at 1356. But see, LOUIS MICHAEL SEIDMAN, ON CONSTITUTIONAL DISOBEDIENCE 4-9 (2012) (arguing
our decisions should be guided not by reference to a “deeply flawed, eighteenth-century
document,” but considering “the merits” of political proposals of each side).
33 Id. I see an inevitable resemblance with the work of the late professor Ronald Dworkin, who
argued that
Fairness in the constitutional context requires that an interpretation of some clause be
heavily penalized if it relies on principles of justice that have no purchase in American
history and culture, that have played no part in the rhetoric of national self-examination
and debate. Fairness demands deference to stable and abstract features of the national
political culture … not to the views of a local or transient political majority just because
these have triumphed of a particular political occasion.
RONALD DWORKIN, LAW’S EMPIRE 377 (1996).
34 Professor Siegel herself, for example, writing on equal protection has argued that
notwithstanding the constitutional text remains the same, we cannot be totally certain that “the
body of equal protection law we inherit today is ‘true’ equal protection …”. Reva Siegel, Why Equal
Protection no Longer Protects: The evolving forms of status-enforcing state action, 49 STAN. L. REV.
1111, 1113-4 (1997).
35 DWORKIN, LAW’S EMPIRE, supra note 33.
36 Siegel, Constitutional Culture, supra note 24, at 1359. See also, RONALD DWORKIN, FREEDOM’S LAW:
THE MORAL READING OF THE AMERICAN CONSTITUTION 11 (1996) (“The moral reading asks them [in
Dworkin’s theory, judges] to find the best conception of constitutional moral principles—the best
understanding of what moral status for men and women really requires, for example—that fits the
broad story of America’s historical record.”). Of course, Dworkin is of utility here to signal that
constitutional interpretations needs to fit within a certain tradition, background, etc. His theory,
however, was hardly one that showed too much sympathy for popular approaches to constitutional
understanding.
37 Siegel, Constitutional Culture, supra note 24, at 1357.
312
jurisgenerative capacity of popular mobilizations seriously by acknowledging them
as authoritative interpretative communities of constitutional interpretation.38 But,
at the same time, they also rule certain conditions that cultural or popular
constitutionalism is to take into consideration, if not respect.
What drives my attention in this, however, is a certain understanding of
constitutions these conditions lay upon, for here constitutions—understood
beyond the constitutional text, although certainly including texts—embrace an
ideal of public good in the sense of common belonging. We care about the
constitution for many different reasons, but particularly because it designates
common commitments rather than empty formulas anyone may capture in order
to secure sectorial benefits. It is this understanding of constitutions what explains
why we expect constitutional interpretations to be attributed to the people (as a
whole) and not to some fraction of it.39 If we were to deem the constitution and its
38
Guinier & Gerald, Changing the Wind, supra note 29, at 2745, 2751-5 (2014) (arguing that
constituencies of non-experts become authoritative interpretative communities as long as they
both provide the foundation and exert legitimizing power over legal change).
39 This is not to deny there are group-relative accounts of what constitutional law is, but rather a
way of allowing these groups to come to the forum and so influence the larger constitutional
scheme. After all, there are many different groups who advance their own views as to what the
constitution commands (permits or prohibits), and they claim their group, and their practices, to
have authority to do so. However, this understanding of constitutions as common belonging does
deny there are group-relative accounts as to what the recognitional constitutional community
(group) is. See, Adler, Popular Constitutionalism and the Rule of Recognition, supra note 3, at 798802. In other words, this is an approach amenable to legal pluralism as long as a constitutional
scheme permits a complementary coexistence of different systems, but it rejects legal pluralism
adopting a more radical approach in order to dispute the authority (i.e. separatists groups) of the
very constitutional scheme they all inhabit. See generally, Brian Z. Tamanaha, Understanding Legal
Pluralism: Past to Present, Local to Global, 30 SYDNEY L. REV. 375, 400-7 (2008). An alternative is
explored, among others, in Neil Walker, The Idea of Constitutional Pluralism, 65 THE MODERN L. REV.
317 (2002).
313
vision of the public good as “competing private interests,”40 there would be little
point in being concerned about its subordination to specific sectors of the body
politic.41 But this is not how we see constitutions.
B. A democratic burden
How can we secure those two conditions will be respected? The answer to this
question brings in what I think is a third condition of social protesters: an
egalitarian turn that flows, the way I see it, from the understanding of constitutions
as common commitments. This is none other than a requirement of political
equality.
Political equality requires an equal distribution of power among citizens who see
one another as equals in origin, dignity, and moral and political agency.42 It is the
normative thrust behind democratic rule that, as Dahl observed some time ago,
there are no persons seen as better qualified to exclusively conduct public affairs.43
This is a foundational principle of democracy that, to paraphrase Dworkin,
demands we are treated with equal concern and respect, and thus accorded equal
40
Zephyr Teachout, The unenforceable corrupt contract: corruption and Nineteenth-Century law, in
MONEY, POLITICS, AND THE CONSTITUTION: BEYOND CITIZENS UNITED 135, 145 (Monica Youn ed. 2011).
41 This is not to deny that constitutions themselves involve certain a form of closure. In fact, a
constitutional framework defines a we/they relation upon which politics is based. CHANTAL MOUFFE,
THE DEMOCRATIC PARADOX 42-5 (2000). But see, Stefan Rummens, Democracy as a Non-Hegemonic
Struggle? Disambiguating Chantal Mouffe’s Agonistic Model of Politics, 16 CONSTELLATIONS 277
(2009) (arguing that Mouffe herself builds her agonistic theory of politics based on certain
universal politico-constitutional values).
42 URBINATI, DEMOCRACY DISFIGURED, supra note 7, at 18-9.
43 ROBERT A. DAHL, ON POLITICAL EQUALITY 4 (2006) (“Among adults no persons are so definitely
qualified than others to govern that they should be entrusted with complete and final authority
over the government of the state.”).
314
political status.44 Political equality is, to further insist, the belief that each of us is
an ordinary and equal person, a member of a polity45 whose views are to be given
no more (individual) weight than the (individual) weight everybody else also
enjoys.46
Reva Siegel is explicit on the relevance of political equality and the sense of
belonging. In fact, far from seeing disagreements about constitutional meaning as
divisive, she believes they help to create a more robust sense of community.
Contestation as to constitutional meaning promotes forms of collective
deliberation that are important “not only as a procedure for deciding how we act,
but also as a practice for articulating who we are.”47 According to what I have been
arguing so far, it is not only that communities are given the opportunity and space
to review themselves in light of common commitments, but also that constitutional
lawmaking depends upon these very same processes.48 Therefore, citizens guide
officials in charge of applying the constitution (guiding), and precisely because of
that they get attached to the constitution they see themselves expounding
(attaching).49 However, they do not play this role in solitude. “Citizens,” Siegel
44 DWORKIN, FREEDOM’S LAW, supra note 36, 7-8; Ronald Dworkin, What is Equality? Part 4: Political
Equality, 22 U.S.F. L. REV. 1, 1-2 (1987-1988).
45 CHARLES R. BEITZ, POLITICAL EQUALITY. AN ESSAY IN DEMOCRATIC THEORY xiii (1989).
46 JEREMY WALDRON, GOD, LUCK, AND EQUALITY. CHRISTIAN FOUNDATIONS IN LOCKE’S POLITICAL THOUGHT 128,
130-31 (2002).
47 Siegel, Constitutional Culture, supra note 24, at 1341.
48 Id.
49 Id. at 1341-2.
315
argues, “must enlist the voice and accommodate the views of others if they are to
persuade officials charged with enforcing the Constitution.”50
Dworkin concurs. For him integrity—as he pictured it—involves the right of “each
person or group in the community [to] have a roughly equal share of control over
the decisions made by Parliament or Congress …”.51 It accepts and expands the role
of citizens in contributing to shape public standards of the community,52 but it also
places demands on them;
It asks the good citizen, deciding how to treat his neighbor when their
interest conflict, to interpret the common scheme of justice to which they
are booth committed just in virtue of citizenship.53
This means that the political exposition of constitutional commitments impose
associational demands binding on all citizens,54 demands that, at the same time,
are also open to be shaped by those very same individuals who are bound by
them.55 In the end, the mutual consideration in constitutional exposition that
political equality demands comes from an associational obligation where the
50
Id. at 1343.
DWORKIN, LAW’S EMPIRE, supra note 33, at 178.
52 Id. at 189.
53 Id. at 189-90.
54 Id. at 211-215 (arguing a model of principle better serves the objectives of a community that
accepts to be governed “by common principles … [where] each person is as worthy as any other,
that each must be treated with equal concern according to some coherent conception of what that
means.”).
55 Id. at 190 (arguing there is an expressive value involved when “people in good faith try to treat
one another in a way appropriate to common membership in a community governed by political
integrity and to see each other as making this attempt, even when they disagree about exactly what
integrity requires in particular circumstances.”).
51
316
dignity,56 liberty,57 justice,58 fairness,59 and self-respect of community members
are (also) at play.60
Now we can ask again. Following Reva Siegel, popular readings of constitutions are
to respect both the consent and the public value conditions. This is so because,
following Dworkin and others, we assume constitutions represent the common
principles of justice that picture how we see one another. We are bound by these
principles and at the same time are invited to interpret them in an egalitarian
fashion, that is, under the assumption we are but one among many. How can it be
secured that these conditions will be respected? Here is where the diarchic
character of constitutional interpretations comes in.
II. Institutional popular constitutionalism
56
Here I follow Jeremy Waldron, How law protects dignity, 71 CAMBRIDGE LAW JOURNAL 200, 201-2
(2012), who claims dignity to be a relational status: “the standing … that a person has in a society
and in her dealings with others.”
57 As Philip Pettit has defended, it is the equal standing (an “equally accessible influence”) we all
have in controlling government and public affairs what provides for political liberty, the idea that
citizens “would each be able to walk tall, live without shame or indignity, and look one another in
the eye without any reason for fear or deference.” PETTIT, ON THE PEOPLE’S TERMS, supra note 23, at 23, 179. See also, BELLAMY, POLITICAL CONSTITUTIONALISM, supra 5, at 165 (arguing that the advantage
that everyone is to be counted equally, the basis upon which democracy is erected, “lies in its nondominating character.”).
58 See, Thomas Christiano, The Authority of Democracy, 11 THE JOURNAL OF POLITICAL PHILOSOPHY 1, 1922 (2003) (“A fair way of making decisions … treats each publicly as an equal and respects each
citizen’s judgment …”).
59 JOHN RAWLS, A THEORY OF JUSTICE 194-5 (1999 rev. ed.) (“the principle of (equal) participation …
requires that all citizens are to have an equal right to take part in, and to determine the outcomes
of, the constitutional process that establishes the laws which they are to comply. Justice as fairness
begins with the idea that where common principles are necessary and to everyone’s advantage,
they are to be worked out from the viewpoint of a suitably defined initial situation of equality in
which each person is fairly represented.”).
60 DWORKIN, JUSTICE FOR HEDGEHOGS, supra note 13, at 319-21.
317
This part begins contending (A) that constitutional interpretation rests, just as
representative democracy, on a diarchy; it rests on the interaction between
informal and non-institutional avenues, on the one hand, and institutional
lawmaking procedures, on the other. It also argues, in line with the previous two
sections, that (B) the interaction between popular readings of constitutions
advanced through social protests and political institutions not only serves political
equality (a benefit that only considers the burdens on protesters), but also permits
democratizing our constitutional understandings (the institutional duty). When
this interaction occurs, an interaction that I see as mandatory for institutions,
constitutional decisions carry greater democratic pedigree and attributing them to
the people is no longer just a matter of superstition.
A. The diarchic character of constitutional interpretation
According to Nadia Urbinati, democracy is a diarchy. This means that democracy is
based on the interplay of two different sovereign powers: that of the democratic
opinion, on the one hand, and that of democratic will, on the other.61 Whereas the
latter accounts for “procedures, rules and institutions,”62 the former stands for “the
opinion of those who obey and participate only indirectly in ruling.”63 While will
evokes formal avenues of authoritative power (i.e. a congress passing a law),
public opinion’s force “is external to the institutions and its authority is informal
(as not translatable into the law directly and not endowed with the signs of
61
URBINATI, DEMOCRACY DISFIGURED, supra note 7, at 22.
Id.
63 Id.
62
318
command).”64 Democracy’s legitimacy is erected upon this interplay between will
and opinion, a relation where each domain influences, and cooperates with, the
other, but “without merging.”65 Where opinion is overlooked, laws become
oppressive and pure arbitrary imposition.66
Constitutional interpretation is also diarchic. As I argued in Chapter 1, social
movements, protest movements among them, relate with the State and its
institutions; they influence the State and the State influences them.67 In Chapter 5, I
insisted that this is the sort of relation popular constitutionalism also entails, for
popular constitutionalists, contrary to what some have suggested, count on
institutional avenues—whether courts, legislatures or administrations—as the
means to channel popular readings, thus rendering them authoritative.
Institutional politics, in other words, transform public opinion into public will,68
and social power of influence, as Habermas termed it, into political power.69
However, whereas popular constitutionalism sees the relation between
institutions and citizens as contingent, I see it as an unavoidable burden on
institutions.
64
Id.
Id. at 2.
66 Id. at 39.
67 The constitutional implications of this mutual influence, notwithstanding the enormous
regulatory power of the State, has been analyzed in Mark Tushnet, The Constitutional of Civil
Society, 75 Chi.-Kent L. rev. 379 (1999-2000). From a social movement perspective, see, Edwin
Amenta & Neal Caren, The legislative, organizational, and beneficiary consequences of state-oriented
challengers, in THE BLACKWELL COMPANION TO SOCIAL MOVEMENTS 461 (David Snow et al. eds., 2007).
68 ROBERT C. POST, DEMOCRACY, EXPERTISE, ACADEMIC FREEDOM. A FIRST AMENDMENT JURISPRUDENCE FOR THE
MODERN STATE 14-5 (2012).
69 JÜRGEN HABERMAS, BETWEEN FACTS AND NORMS: CONTRIBUTIONS TO A DISCOURSE THEORY OF LAW AND
DEMOCRACY 363 (William Rehg trans., MIT Press 1998).
65
319
There is one pivotal reason that explains why constitutional interpretation cannot
be but diarchic. This is so because the very act of constitutional foundation
establishes a system of non-institutional/institutional functioning.70 The state of
exception, where the true political force of the sovereign is manifested, needs the
law (and its institutional form) for its own validity; the law, in turn, is the product
and the reaffirmation of the exceptional moment of decision.71 Just as a
constitution, along with the legal system that is erected under its auspices, is “the
inner truth of the revolution … the revolutionary exception is the inner truth of
constitution,” as Kahn observed.72 This is a clear indicator that “[t]he decision
concerns neither a quaestio iuris nor a quaestio facti, but rather the very relation
between law and fact,” as Agamben put it.73 This relation is inescapable—such as
that of the slave/master divide in Hegel—; as such, constituent power and
constituted power stay in this relation.74
This paradox of sovereignty, the very fact that constituent power as a
manifestation of sovereignty is “at the same time, outside and inside the juridical
70
I utilize the voice system here only to denote the institutional (the State) and non-institutional
(public opinion) systems are (themselves) individual systems. These systems, although related, do
not substitute each other, as explained in Habermas (Id. at 372). Still more accurate is the idea put
forward by Martin Loughlin, who contends “we can overcome the fact-norm divide by treating both
juristic and sociological sides as dimensions of [the] social practice [of the power of the state].”
MARTIN LOUGHLIN, FOUNDATIONS OF PUBLIC LAW 221 (2010). In a similar fashion, professor Nadia
Urbinati, Free Speech as the citizen’s right, in CITIZENS DIVIDED. CAMPAIGN FINANCE REFORM AND THE
CONSTITUTION 125, 134 (Robert C. Post 2014) (arguing that in the characterization of democracy as a
diarchy “‘will’ and ‘opinion’ are the two powers of the democratic sovereign; and that they are
different and should remain distinct, although in need of constant communication.”).
71 GIORGIO AGAMBEN, HOMO SACER: SOVEREIGN POWER AND BARE LIFE 15-25 (Daniel Heller-Roazen trans.,
Stanford University Press 1998).
72 PAUL W. KAHN, POLITICAL THEOLOGY. FOUR NEW CHAPTERS ON THE CONCEPT OF SOVEREIGNTY 47 (2011).
73 AGAMBEN, HOMO SACER, supra note 71, at 26.
74 LOUGHLIN, FOUNDATIONS OF PUBLIC LAW, supra note 70, at 227.
320
order,”75 projects itself along regular (as distinguished from the constituent)
moments of the constitutional State.76 As Loughlin argues, the State itself can only
be understood once we consider “both its juristic and sociological sides.”77 Arguing
exclusively in favor of one of these sides, say rejecting the role of institutions or
that of public opinion, blurs the fact that the constituent power is both political and
legally constituted.78 In addition, it also overlooks the reflexive relation of
collective self-determination these components stay in throughout governmental
times—times that certainly include constitutional exposition.79 In fact, this process
of collective self-determination, the process of defining what we (politically) are,
extends beyond the constitutive moment to encompass the work of constituted
institutions.80 The words of Loughlin are more illustrative here; he says,
constituent power cannot be understood without reference to constituted
power; it acts for the purpose of establishing a constitutional form of
75
AGAMBEN, HOMO SACER, supra note 72, at 15.
This distinction was widely popularized by BRUCE A. ACKERMAN, 1 WE THE PEOPLE: FOUNDATIONS 610 (1991).
77 LOUGHLIN, FOUNDATIONS OF PUBLIC LAW, supra note 70, at 221.
78 Just as democracy is based on an adequate and balanced relation between public opinion and
authoritative will formation, constitutional interpretation risks becoming disfigured when one of
the wills takes over the other. URBINATI, DEMOCRACY DISFIGURED, supra note 7, at 5-12. See also,
Urbinati, Free Speech as the citizen’s right, supra note 70, at 135 (“in representative democracy, the
sovereign is not simply the authorized will (franchise), but is instead a dual entity in which the will
or decision is one component, the other being the opinion of those who obey the law and
participate only indirectly ruling.”).
79 Hans Lindahl, Constituent Power and Reflexive Identity: Towards an Ontology of Collective Selfhood,
in THE PARADOX OF CONSTITUTIONALISM: CONSTITUENT POWER AND CONSTITUTIONAL FORM 9 (Martin
Loughlin & Neil Walker eds. 2008).
80 As Webber explains, we usually consider constitutions as an ‘end-state’ and thus we struggle to
frame every political decision within borders that, we assume, are already determined. Contrary to
this, “[a] constitution should not be understood as a completed project; rather, consistent with
political legitimacy, one should conceive of a constitution as an activity.” GRÉGOIRE C. N. WEBBER, THE
NEGOTIABLE CONSTITUTION. ON THE LIMITATION OF RIGHTS 13 (2009) (emphasis in the original).
76
321
government, and it continues to work through the established
constitutional form by questioning and modifying the meaning of that
structure. 81
This is what constitutional interpretation—the constant definition and revision of
what type of political community we are—is about.
There are other very important reasons—important in light of my discussion
here—that concur in highlighting the crucial role democratic institutions play.
First, institutions help to secure political equality. Popular and protest movements
are not unitary nor have a single will. It is not that once we eliminate the State a
natural unity will emerge. If we take politics seriously it is hard to believe that in
the absence of the State “the Multitude can immediately rule itself and act in
concert without the need of law or the State,”82 as if—as Kriegel put it—society
were “the antidote to the expanding malignant tumor of the state…”.83 This is
something Reva Siegel also acknowledges. As she put it when presenting the
consent condition social protest movements are to respect, this condition “does
81
LOUGHLIN, FOUNDATIONS OF PUBLIC LAW, supra note 70, at 227.
CHANTAL MOUFFE, AGONISTICS. THINKING THE WORLD POLITICALLY 78-9 (2013).
83 KRIEGEL, THE STATE AND THE RULE OF LAW, supra note 14, at 7 (arguing against vulgar anti-statism
and the consequent fetishization of society). This is something that stands even when that antistatism is based, as recent waves of discontent were based, in the disconnection between States and
the people. In fact, those who believe the multitude alone—“a sphere of common affairs that is no
longer state-run … experimentations of forms non-representative and extra-parliamentary”—can
provide the answer to current injustices overlook forms of hegemony they themselves (may) adopt.
MOUFFE, AGONISTICS, supra note 82, at 69-75. For example, the horizontal character many supporters
of recent mobilizations endorsed and praised—such as ‘Occupy’ and the indignados—implied the
elimination of dissent; during general assemblies those participating in them were all granted a
one-person veto.
82
322
not guarantee speakers equality of resources or authority…”.84 Furthermore,
depending on the social structures of power and oppression, this condition can
actually “naturalize radically antidemocratic forms of subordination.”85
Therefore, some form of institutional articulation becomes unavoidable. We need
not refer back to Hobbes’ Leviathan, but to H.L.A. Hart’s The Concept of Law to
understand why this form of articulation is needed:
It is plain that only a small community closely knit by ties of kinship,
common sentiment, and belief, and placed in a stable environment, could
live successfully by such a regime of unofficial rules.86
The same applies to constitutions.87 For this is precisely the kind of common
normative (not necessarily in a legalistic sense) background constitutions provide,
“mak[ing] politics possible among people who disagree, often quite radically, about
values, principles, rights, justice, and the common good.”88 This frame cannot be
solely based on a sort of tacit or consensual fashion, for—as Jeremy Waldron put
it—when there is
a large and complex polity … where members are diverse, it may be
doubtful whether stable political practices can be identified just by implicit
know-how. In those circumstances, written norms seem necessary;
formality has to take the place of tacit or clubbish understanding, and
84
Siegel, Constitutional Culture, supra note 24, at 1356.
Id.
86 H.L.A. HART, THE CONCEPT OF LAW 91 (1997).
87 See generally, WEBBER, THE NEGOTIABLE CONSTITUTION, supra note 80, at 19-21.
88 Jeremy Waldron, Book Review: Never Mind the Constitution, 127 HARV. L. REV. 1147, 1169 (2014).
85
323
constitutional formulations themselves have to serve as a focus of unity in
an otherwise pluralistic community.89
Whereas the informal public sphere is (not only relevant, but) crucial in providing
the State, its institutions, and its decisions with legitimacy, this work cannot be
done in an egalitarian (=mutual understanding) fashion without the State and its
institutions.90 Whether by opening institutional channels to all so they may
collectively concur91 or providing material access to the public sphere so that
material inequalities will not dominate,92 the State and its institutions offer their
avenues as a common depository of recognition and dignity everyone is to enjoy.93
As Honneth explains, the democratic constitutional State institutionalizes and
expands “the right that citizens have already accorded to each other for the
purpose of unforced self-legislation.”94 Following Habermas, the constitutional
State is meant to enable “effective utilization of equal communicative freedom”95
89
Id. at 1171. The same has been held from a republican perspective. Consider the words of PETTIT,
JUST FREEDOM, supra note 9, at 111:
But it is hard to see how such a spontaneous, state-independent order could identify basic
liberties reliably and maintain equal resourcing and protection of those liberties that is
required by social justice.
90 HABERMAS, BETWEEN FACTS AND NORMS, supra note 69, at 132 (“The moment of a reciprocal
conferral of rights remains a metaphorical event. It can perhaps be recalled and ritualized, but it
cannot become permanent unless state power is established and put to work.”).
91 WEBBER, THE NEGOTIABLE CONSTITUTION, supra note 80, at 19 (“The actualization of the principle of
democracy requires a system of rules, procedures, and institutions to allow citizens to speak and
collectively to act.”).
92 JÜRGEN HABERMAS, THE STRUCTURAL TRANSFORMATION OF THE PUBLIC SPHERE. AN INQUIRY INTO A
CATEGORY OF BOURGEOIS SOCIETY 227-8 (Thomas Burger trans. MIT Press 1991).
93 See, Charles Taylor, Some Conditions of a Viable Democracy, in DEMOCRACIA REPUBLICANA /
REPUBLICAN DEMOCRACY 67, 74-5 (Renato Cristi & Ricardo Tranjan eds. 2012). See also, JEREMY
WALDRON, LAW AND DISAGREEMENT 111, 116-8 (1999).
94 HONNETH, FREEDOM’S RIGHT, supra note 17, at 305.
95 HABERMAS, BETWEEN FACTS AND NORMS, supra note 69, at 170.
324
and “to secure”—as he explains—“an effective exercise of the political autonomy of
socially autonomous citizens.”96
The egalitarian value the State and its institutions serve is further noticed once we
pay attention to the special, as opposed to common, status those who fail to
comply with common rules and procedures claim for them, for in that case such a
person is not only “violating a duty of justice to his [her] fellow citizens,”97 but also
asking to be assumed of a special kind. For one, Pettit has argued that a
contestatory citizen requires “a commitment to living under an arrangement
where all members of the community can share in a system of equal popular
influence.”98 This virtue—recall Pettit talks from the republican tradition—
supposes
not
a
sectarian
disposition,
but
one
of
“compromise
and
accommodation.”99 Otherwise, rejecting interaction and submitting your sense of
justice to others’ views assumes you, and your group, are of a special kind.100 As
Christiano put it, this rejection to engage supposes that one is not considering
others as equals but “in effect expressing the superiority of one’s interests over
others.”101
96
Id. at 176.
Christiano, The Authority of Democracy, supra at 58, at 18.
98 PETTIT, ON THE PEOPLE’S TERMS, supra note 23, at 228.
99 Id.
100 PETTIT, JUST FREEDOM, supra note 9, at 114.
101 Christiano, The Authority of Democracy, supra at 58, at 12.
97
325
Second, institutions help make social changes effective and secure.102 As Guinier
has argued, effective social change, including advancing a new constitutional
understanding, demands decoupling previous assumptions. To be sustainable,
these changes at both social and cultural levels are to be “institutionalized” so that
it would be easier to oversee them. As she puts it, change is “a process that must be
continuously monitored under the watchful eye of engaged political and social
actors.”103 Thus, change in public opinion alone is not enough104—or at best it is
only the beginning,105 for rights alone, or alleged social change, provide no set of
policies to implement these (new) understandings.106
Again, you may consider these implementations unnecessary if you believe it is up
to society itself to enforce its own interpretations. But how? Whose decisions will
be reputed to be those of society? How will changes become tangible? The diarchic
nature of constitutional interpretation solves these problems by requiring social
changes to move through institutional politics until they transform into political
102
In fact, as Honneth illustrates, it is the State the organ we have charged with the duty of
“implementing the democratically negotiated will of the people.” HONNETH, FREEDOM’S RIGHT, supra
note 17, at, at 304.
103 Lani Guinier, Beyond Legislatures: social movements, social change, and the possibilities of
demosprudence. Courting the people: demosprudence and the law/politics divide, 89 BOSTON U. L. REV.
539, 551 (2009).
104 Guinier & Torres, Changing the Wind, supra note 29, at 2758. See also, Guinier, Beyond
Legislatures, supra note 103, at 551 (“social change is only sustainable if it succeeds in changing
cultural norms, is institutionalized through policy decisions and the oversight of administrative
actors …”).
105 MOUFFE, AGONISTICS, supra note 82, at 115-6.
106 Guinier & Torres, Changing the Wind, supra note 29, at 2759.
326
power. This political power, in turn, will produce policies “that can be converted
into binding decisions and programs to be implemented.”107
D. Democratic internal viewpoint
Formal changes (expressed either in laws or in constitutional amendments)
account for the political fights displaced voices have fought and serve as
testimonies of the struggles we have experienced. Institutions, as argued above,
contribute (sometimes decisively) to secure these social changes, but this does not
mean that institutions replace public opinion, just as public opinion does not
replace institutions. What institutional outcomes do is validate social rhetoric
offering a new constitutional vision.108 This diarchic nature of constitutional
interpretation, as I have argued, is far from being purely contingent, but a
democratic requirement that stems from the understanding of constitutions as
common commitments—an understanding that invites what some call an “ongoing
dialogue between constitutional law and constitutional culture … [a] public debate
about the meaning of constitutional principles.”109
That political institutions help us deal with the requirements of political equality is
something the different variants of popular constitutionalism accept. As I
explained in Chapter 5, popular constitutionalists themselves rely on institutions.
Theirs, as it has been put, is not a “philosophy of unmediated preference gathering
107
HABERMAS, BETWEEN FACTS AND NORMS, supra note 69, at 331.
Guinier & Torres, Changing the Wind, supra note 29, at 2798.
109 Guinier, Beyond Legislatures, supra note 103, at 559.
108
327
(like the populist initiative process or the market).”110 Rather, as Guinier and
Torres explain, theirs is a “commitment to the lawmaking force of meaningful
participatory democracy.”111
Whereas it is therefore true that social changes alone lay no constitutional
interpretation but when complemented with institutional change, the opposite
holds true as well: “rule shifting without culture shifting” is neither capable of
producing “real and sustainable change”112 nor of encouraging “popular ownership
of the Constitution’s text.”113 In fact, when changes are only formal—as Douzinas
has convincingly argued—we risk the total collapse of our institutions by
increasing (if not fueling) the gap between common and conventional (sometimes
unspoken) social commitments, on the one hand, and social and economic policies
and laws, on the other.114
The interplay between popular readings of constitutions and institutional
outcomes I am talking about here seeks precisely to overcome this mismatch. It
permits a process that enhances democratic credentials of our constitutional
commitments by giving the people a crucial say on what the constitution is. In
other words, by inviting the people to directly be involved in constitutional
exposition, institutional outcomes become democratized and thus legitimized.
When we see social mobilizations as complementing institutional outcomes we can
110
Id. at 553 n.97.
Guinier & Torres, Changing the Wind, supra note 29, at 2751.
112 Id. at 2797-8.
113 Gerald Torres & Lani Guinier, The Constitutional Imaginary: just stories about we the people, 71
MD. L. REV. 1052, 1054-5 (2012).
114 COSTAS DOUZINAS, PHILOSOPHY AND RESISTANCE IN THE CRISIS 49-51 (2013).
111
328
appreciate this interaction deepens—to the extent this is possible—the
correspondence between what Nadia Urbinati terms the ‘legal’ country and the
‘real’ country, thus emancipating power “from the plague of being identified with a
command-obedience relationship …”.115
As can be seen, the interaction that a diarchic constitutional interpretation
produces democratizes—going back to Hart once again—the internal viewpoint.
According to Hart, we are participants in a legal system, rather than mere
observers in search of certain regularities, when we “use the rules as standards for
the appraisal of their own and others’ behaviour.”116 The violation of a rule,
accordingly, justifies a hostile reaction that will follow—it is “a reason for
hostility.”117 Of course, as Hart himself made it clear, there are many reasons—
other than a moral or a political commitment—to hold such a view:
their allegiance to the system may be based on many different
considerations: calculation of long-term interest; disinterested interest in
others; an unreflecting inherited or traditional attitude; or the mere wish to
do as others do.118
Notably, as Hutchinson elaborated, the democratic credentials of legal decisions
seemed irrelevant,119 which, at least in the contexts we talk from now, is plainly
115
URBINATI, DEMOCRACY DISFIGURED, supra note 7, at 36-8
HART, THE CONCEPT OF LAW, supra note 86, at 98 (emphasis in the original).
117 Id. at 90.
118 Id. at 203.
119 ALLAN C. HUTCHINSON, THE PROVINCE OF JURISPRUDENCE DEMOCRATIZED 45-63 (2009). See also, SCOTT J.
SHAPIRO, LEGALITY 96 (2011) (commenting on Hart’s Concept of Law and noticing that “[t]he
existence of legal authority need not depend on the moral legitimacy of the body claiming power.”).
116
329
inadmissible. A model where citizens are not required to take stance toward
institutional decisions based on these decisions’ democratic pedigree is “ill suited
to the institutional demands of strong democracy.”120 In fact, a democracy
committed to self-government aims at reducing the gap between institutional
decisions and society.121 In such a context citizens evaluate decisions—laws
included—precisely considering their legitimacy. In the words of Hutchinson:
A strong democracy depends upon its citizen’s willing acceptance of the
system’s overall legitimacy through their own participation rather than a
begrudging resignation to rules developed and administered by official
others.122
Consequently, a participatory-based (substantive) bound to the rules does much
more than merely increasing the stability of the system, as Hart pointed out.123
Political participation actually is the condition of its legitimate existence.124 This is
critical for constitutions and their interpretations. As Waldron argued,
the constitution cannot do any of the work it is supposed to do in framing
and defining a political system unless people are prepared to accept it, for
the time being, as authoritative.125
The diarchic interpretation of constitutions brings democracy in. It claims, as
noted above, that institutional interpretations of constitutions can be attributed to
120
HUTCHINSON, THE PROVINCE OF JURISPRUDENCE DEMOCRATIZED, supra note 119, at 54.
Id. at 55.
122 Id.
123 HART, THE CONCEPT OF LAW, supra note 86, at 203.
124 HUTCHINSON, THE PROVINCE OF JURISPRUDENCE DEMOCRATIZED, supra note 119, at 56.
125 Waldron, Book Review: Never Mind the Constitution, supra note 88, at 1169.
121
330
the people as a whole only when having been spurred by political participation—
included that carried out through protests. Does this mean that those institutional
interpretations of constitutions approved without contentions from the citizenry
are not (legally) valid? Of course not. They are as valid as those primary rules Hart
talked about—rules that, for a variety of reasons, will be deemed as standards of
critique for one’s own and others’ actions.126 However, they will not be regarded as
expressions of the people themselves and their constitutional credentials will
certainly be poor.127 If, as I started arguing in this chapter, a State’s intervention
can be evaluated in terms of justice, fairness, and responsiveness to the people’s
views, the same can be done for institutional readings of constitutions: some will
be formal, although valid, decisions.128 Others, instead, will be attributed to, and
supported by a practice of democratic respect by, the people.129
Conclusions
My concern in this chapter has been that of securing both horizontal as well as
vertical power in interpreting constitutions. Whereas horizontal power refers to
the distribution of power among different private citizens, vertical power answers
126
Jeremy Waldron, Are constitutional norms legal norms? 75 FORDHAM L. REV. 1697, 1709 (2006).
As Hutchinson notices, mere acquiescence is not enough. HUTCHINSON, THE PROVINCE OF
JURISPRUDENCE DEMOCRATIZED, supra note 119, at 56.
128 After all, as Webber has insisted, legitimacy is a matter of degree. WEBBER, THE NEGOTIABLE
CONSTITUTION, supra note 80, at 16-8.
129 As Waldron has argued criticizing the way Hart saw fundamental secondary rules, there is “little
or nothing in Hart’s account to characterize, explain, or make plausible the existence of a similarly
clear distinction between the positive moral aspects and the legal aspects of the secondary rules of
a political system.” Waldron, Are constitutional norms legal norms? Supra note 126, at 1710-1.
127
331
the relations of power of citizens vis-à-vis governmental officials.130 I have argued
that constitutional interpretation that works in a diarchic fashion meets this
objective. A diarchic constitutional interpretation requires popular constitutional
readings advanced through protests to be complemented, not replaced, with
institutional avenues where those cultural opinions can be openly discussed. While
institutions serve political equality by offering avenues open to all to concur, they
also provide stable social changes and allow the people to appropriate the
constitution.
130
I have taken this distinction from Dworkin, What is Equality? Part 4, supra note 44, at 8-9.
332
CONCLUSIONS: PROTESTS AS NEGOTIATING TOOLS
Constitutions are normally depicted as end-states. Not surprisingly, constitutions’
political understanding has turned around its limiting and constraining character
on political actions—including those of the people themselves. Hence, that
democracy, so we are usually told, is to move within certain borders whose true
comprehension is placed beyond the reach of the people and their representatives.
In fact, under this prism constitutions are legal texts and their understating is
therefore reserved to an elite trained in reading and explaining legal materials.
This is the reason why, when the channels of political life that constitutions
establish are to be clarified, an elite (normally of judges) exposes those principles
for, and instead of, us. Furthermore, this is an activity that takes place in chambers
shielded from politics and suited to discuss in a principled fashion.1
This work has held a different approach. It has conceived constitutions as an
activity.2 It has presented constitutions as open-ended projects where basic
commitments are recognized, although inevitably left open.3 Despite the fact
constitutions normally assert basic political principles all concur in celebrating,
1 As the school of critical legal studies has amply demonstrated, we know that courts do make
political decisions. However, precisely because mainstream constitutional approaches deny this,
these political decisions—critical, as constitutional exposition happens to be—take place in a
context with a lack of transparency (courts) and which only furthers obstacles for popular
engagement with them, at least when we compare them with legislatures. See generally, Jeremy
Waldron, Representative Lawmaking, 89 B.U. L. REV. 335, 336-40 (2009) (“Parliaments and
congresses and state assemblies are set up and publicly identified as lawmaking bodies.”).
2 GRÉGOIRE C. N. WEBBER, THE NEGOTIABLE CONSTITUTION. ON THE LIMITATION OF RIGHTS 13 (2009).
3 Id. at 7.
333
these principles are not self-evident in their specific content. “[N]o definitive
account of the principles of political legitimacy or of their reconciliation—as
Grégoire Webber has put it—is readily available.”4 The content of those principles
and the relations among them are therefore to be actualized.
This is why, rather than highlighting constitutions as mere constrains, this work
has understood constitutions as open projects whose contours are the subject of
an ongoing reflection and development. In this sense democratic constitutionalism
is better seen, and more accurately described, as an activity through which
constant agreements are worked out.5 Constitutions, in other words, do not have
fixed meanings. In fact, their understandings are being constantly negotiated or
“continuously ‘conciliated’.”6 This is what bestows legitimacy on constitutional
orders.7
I have joined others in remarking this political comprehension of constitutions. A
political (as opposed to an exclusively legal) constitutionalism highlights the role
of politics and democratic avenues, and it also welcomes people to have a say
about it—something the more sophisticated and juridified approaches would not.8
4
Id. at 14.
James Tully, The Unfreedom of the Moderns in Comparison to Their Ideals of Constitutional
Democracy, 65 MOD. L. REV. 204, 208 (2002).
6 Id.
7 “The constitution or the principles justifying it cannot be seen as a permanent foundation or
framework which underlies democratic debate and legislation. They must be reciprocally subject to
legitimation through practices of the democratic exchange of reasons by those subject to them over
time” (Id).
8 Waldron, Representative Lawmaking, supra note 1, at 340 (“Because they are at pains to conceal
the fact that lawmaking is what they are engaged in, courts are not as open to the sort of reasons
and arguments that any reasonable person would regard as indispensable for rational and
responsible lawmaking.”).
5
334
As Bellamy has put it, a legalist understanding of constitutions places key political
decisions out of the reach of the people, therefore risking political domination of
one sort (we cannot decide upon constitutions) or another (it is possible to make
decisions about constitutions, but that is a task we cannot perform).9 A political
conception, on the other hand, warns against depoliticizing constitutional
negotiations precisely to enable a self-governing political order that can do justice
to political equality.10
Constitutions therefore are to be seen as not only restricting power and politics;
they have a positive, enabling, face as well. They permit politics—they set “the
terms of discourse”11—and actually demand it in order to actualize the relations
among the principles they establish. In fact, the very acts of offering and deciding a
certain “relationship between the principles of political legitimacy is [itself]
another instance of political judgment.”12 Seen in this light, politics is the very
activity through which communities constantly negotiate and continuously
conciliate their own political understanding. Politics, as I argued in Chapter 6, is
the very activity through which constitutions are continually being developed,
detailed and deepen. As I put it there, the process of collective self-determination,
the process through which we keep on defining what we are, extends beyond the
9
RICHARD BELLAMY, POLITICAL CONSTITUTIONALISM. A REPUBLICAN DEFENCE OF THE CONSTITUTIONALITY OF
DEMOCRACY 147-54 (2007).
10 Id. at 146. As Adam Tomkins put it, republicanism—the theoretical basis where he rests his
political constitutionalist conception—“is concerned not with government-through-judiciary but
with self-government through processes of informed, public-spirited deliberation.” ADAM TOMKINS,
OUR REPUBLICAN CONSTITUTION 45 (2005).
11 MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS 185 (1999).
12 WEBBER, THE NEGOTIABLE CONSTITUTION, supra note 2, at 26.
335
constitutive moment to encompass the work of constituted institutions and
regular politics. In the words of Loughlin—already quoted in Chapter 6—,
constituent power cannot be understood without reference to constituted
power; it acts for the purpose of establishing a constitutional form of
government, and it continues to work through the established
constitutional form by questioning and modifying the meaning of that
structure. 13
Clearly, this is a comprehension of constitutions that can be as elitist and a source
of domination as strong as the legal understanding before explained, for if avenues
of political engagement are to be reduced exclusively to institutional avenues the
risks of domination persists.14 To prevent authoritative decisions from becoming
“purely formal norm[s] with no conscious acceptance by the citizens,”15 a
supplement of legitimacy is needed here. This is why I have argued the people are
to play a crucial role in expounding those principles. Traditional liberal approaches
present courts (or in the best scenario any other institutional avenue) as
exclusively entitled to work out constitutional meaning. Even when these
approaches contend that these institutional avenues should be permeated with
popular readings of the constitution, institutional avenues and formal procedures
remain the sovereign practices that produce constitutional understanding.
13
MARTIN LOUGHLIN, FOUNDATIONS OF PUBLIC LAW 227 (2010).
As I explained in Chapter 2, this was one of the main contentions recent waves of popular unrest
expressed.
15 NADIA URBINATI, DEMOCRACY DISFIGURED: OPINION, TRUTH, AND THE PEOPLE 38-9 (2014).
14
336
Instead, I have showed there are others political fora where constitutional
negotiations also take place. If the thrust behind popular constitutionalism is to
“return[] constitutional law to the people, acting through politics,”16 then
institutional avenues are to be supplemented with fora laypeople usually resort to.
These fora are informal, non-institutional and less-stylized when compared to
courts or other institutional avenues.17
This is why the places where constitutional negotiations take place and the actors
that get to participate in those negotiations become important indicators of
democratic legitimacy. Of course this concern for democratic legitimacy depends
to a large extent on the concept of constitutional negotiation and that of the
constitution behind it.18 On the one hand, a negotiation may be understood as an
activity where participants intervene speaking for, and pursuing, their own
individual interests. This is a business-like negotiation or bargaining. As I
explained in chapter 6, this sense of constitutional negotiation would imply that
constitutions are a political booty that, despite their inviting (and at times
fraternal) language, are to be appropriated by whoever succeeds in translating his
or her private interests into ruling political understandings.
There is, however, a second sense—the one I have privileged in this work—in
which constitutions could be understood. Indeed constitutions could be, and are
16
TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS, supra note 11, at 186.
These informal fora, as noted through this work, “do[] not operate in the presence of the
institutional sovereign (the assembly) but underneath it and through sympathetic imagination
rather than rational inference.” URBINATI, DEMOCRACY DISFIGURED, supra note 15, at 38-9.
18 I rely here on the two senses of constitutional negotiations identified in WEBBER, THE NEGOTIABLE
CONSTITUTION, supra note 2, at 27-8.
17
337
normally, understood as common commitments setting a common framework for
politics. In this sense constitutions distribute power and we expect them to
distribute it evenly.19 This concept of constitutions is followed by a different sense
of constitutional negotiations. One where citizens communicate with others “for
the purposes of arranging a shared goal by mutual agreement, by compromise, by
settlement.”20 In this second sense, citizens come to constitutional negotiations in
order to share their own constitutional understanding with others.21
We know, however, that constitutional landscapes show, and have been erected
upon, traces of exclusion of certain minorities; hegemonic imposition of
constitutional understandings; and limited recognition of those, and the means,
welcome to appear in constitutional negotiations. As I explained at the beginning
of this work, reigning constitutional understandings—a specific configuration of
power relations—have restricted, and privileged certain, means of “political
engagement to the constitutional”.22
Social protests, as I have argued throughout this work, function as a negotiating
tool in the second sense aforementioned. It is a means that permits citizens to
appear politically in a space where they were before excluded and to express their
views about common constitutive commitments that no one bothered to ask
19 This explains the emphasis I placed on the political equality and moral agency of all members of a
political community to have a say as to what these common commitments entail.
20 WEBBER, THE NEGOTIABLE CONSTITUTION, supra note 2, at 28.
21 Id.
22 Christopher May, The rule of law as the Grundnorm of the new constitutionalism, in NEW
CONSTITUTIONALISM AND WORLD ORDER 63, 69 (Stephen Gill & A. Claire Cutler eds. 2014).
338
before.23 Seen in this light, social protests allow citizens to be included and enable
them to renegotiate current constitutional understandings. They become—to
insist with Tully—“practices of freedom in which democratic actors seek, by
means of traditional and new forms of deliberation and negotiation, to challenge
and modify the non-democratic ways they are governed.”24 Social protests, as the
examples I drew from Chile and Québec show, facilitated the voices of adolescents,
who are seldom considered to have a political say, to be heard. In this way protests
permitted the constitutions to be sensitive to voices seldom listened to, thus
enhancing the “polyphonic articulation[s] of social autonomy” plural societies
show.25 It was the tool of protest what triggered a process of renegotiation of
constitutional understanding, thus permitting off-the-wall considerations to step
in and eventually become ruling understandings.
These interactions were possible thanks to the diarchic character of democracy,
which, as I have argued in this work—particularly in Chapters 5 and 6—, extends
to constitutional negotiations. The diarchic nature of both democracy and
constitutional interpretation demands a virtuous, although tense and conflicting,
equilibrium between institutional and non-institutional avenues. The emphasis I
have placed specifically on protests therefore aims not at replacing institutions,
23 Protests allow those previously excluded to fight so that they may be taken into account. As
Arendt put it, “a space of appearances is not to be taken for granted wherever men live together in a
community”. HANNAH ARENDT, BETWEEN PAST AND FUTURE: EIGHT EXERCISES IN POLITICAL THOUGHT 152
(2006).
24 Tully, The Unfreedom of the Moderns. supra note 5, at 221.
25 See, GUNTHER TEUBNER, CONSTITUTIONAL FRAGMENTS: SOCIETAL CONSTITUTIONALISM AND GLOBALIZATION 3
(Gareth Teubner trans. Oxford University Press 2012).
339
but to complement them, thus enhancing democratic credentials. The kind of
protests I have focused on throughout this work seek—as I explained in Chapter
2—not to overthrow governments, but to contest relations of exclusion (power)
and bring those formerly excluded “into practices of democratic negotiations.”26
This is why the protests that in this work I have qualified as events taking place
within the rules of the game, rather than favoring a form of direct democracy,
actually aim at restoring the diarchic equilibrium between formal and informal
avenues. In the words of Nadia Urbinati, these events
bring[] us somehow back to the Roman plebs that used to interact with
their leaders in the forum, not in order to replace them in ruling, but to feel
they could control them by imposing the burden of inspection on them.27
This discord between the rulers and the ruled (and also among these latter) far
from posing a threat to democracy is actually a condition for its deepening. The
frictions these interactions generate—frictions in front of which authorities seem
to have stopped in their appreciations—are, as Machiavelli put it centuries ago, the
conditions to secure the liberty of republics and good outcomes. “Good laws,” he
wrote back in 1531, proceed “from those very tumults which many so
inconsiderately damn.”28 Furthermore, those very tumults are the means through
which many of those who were before excluded got a voice and a share in common
matters:
26
Tully, The Unfreedom of the Moderns. supra note 5, at 221.
Nadia Urbinati, A Revolt against Intermediary Bodies, 22 CONSTELLATIONS 477, 478 (2015).
28 NICCOLÒ MACHIAVELLI, THE DISCOURSES 114 (Bernard Crick ed., repr., Penguin Classics 2003) (1531).
27
340
if tumults led to the creation of the tribunes, tumults deserve the highest
praise, since, besides giving the populace a share in the administration, they
served as the guardian of Roman liberties.29
Tumults, in the words of Machiavelli, or protests, in the words of this work, open
constitutional negotiations, thus allowing new voices to step in. This openness, in
turn, triggers a “dynamic and politically potent relationship between [legal elites]
and aggrieved communities.”30 By doing so, protests contribute to establish a
dynamic
equilibrium
between
institutional
avenues
of
lawmaking
and
constitutional detailing, on the one hand, and citizens, on the other.31 Therefore,
courts, legislatures, administrations, or any other institutional forum “are not the
sole expositors of constitutional or legal meaning.”32
This is precisely the sense in which social protests are a form of constitutional
interpretation. They are so not by simply moving institutional avenues to produce
new legislation or by altering public opinion, thus ultimately changing and
“creating an alternative narrative of constitutional meaning,”33 but by showing that
constitutional meanings are the result and “the work of mobilized citizens in
conjunction with, not separate from, legal professionals” and institutional
29
Id. at 115.
Lani Guinier, Beyond Legislatures: social movements, social change, and the possibilities of
demosprudence, 89 B. U. L. REV. 539, 548 (2009).
31 Lani Guinier & Gerald Torres, Changing the Wind: Notes Toward a Demosprudence of Law and
Social Movements, 123 YALE L. J. 2740, 2759-60 (2014).
32 Id. at 2759.
33 Id. at 2757.
30
341
avenues.34 Far from destabilizing constitutional schemes, social protests further
the stability and legitimacy of constitutional orders by, while operating as a tool
for negotiating interpretations, also becoming a means by which the people
appropriate and attach to their constitutional orders.35 As Tushnet put it, “the
Constitution belongs to us collectively, as we act together in political dialogue with
each other—whether we act in the streets, in the voting booths, or in the
legislatures as representative of others.”36
34
Id. at 2760.
Reva Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case
of the de facto ERA, 94 CAL. L. REV. 1323, 1341-2.
36 TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS, supra note 11, at 181.
35
342
BIBLIOGRAPHY
Abu El-Haj, Tabatha, The Neglected Right of Assembly, 56 UCLA L. REV. 543 (2009).
— All Assemble: Order and Disorder in Law, Politics, and Culture, 16 J. CONST.
L. 949 (2014).
Abul-Magd, Zeinab, Occupying Tahrir Square: The Myths and Realities of the
Egyptian Revolution, 111 SOUTH ATLANTIC QUARTERLY 565 (2012).
Abdelaal, Mohamed, Egypt's Public Protest Law 2013: A Boost to Freedom or a
Further Restriction? 11 US-CHINA L. REV. 1114 (2014).
Acemoglu, Daron & Robinson, James A., Against Political Capture: Occupiers,
Muckrakers and James A. Robinson, in THE OCCUPY HANDBOOK 100 (Janet Byrne ed.,
New York: Back Bay Books, 2012).
Ackerman, Bruce, 1 WE
Press, 1991).
THE
PEOPLE: FOUNDATIONS (Cambridge: Harvard University
Adler, Matthew D., Popular Constitutionalism and the Rule of Recognition: whose
practices ground U.S. Law? 100 NW. U. L. REV. 719 (2006).
Agamben, Giorgio, HOMO SACER: SOVEREIGN POWER AND BARE LIFE 15-25 (Daniel
Heller-Roazen trans., Stanford: Stanford University Press, 1998).
Agné, Hans, Democratic Founding: We the people and the others, 10 INT’L. J. CONSTIT.
L. 836 (2012)
Albert, Richard, Protest, Proportionality, and the Politics of Privacy: Mediating the
Tension between the Right of Access to Abortion Clinics and Free Religious
Expression in Canada and the United States, 27 LOY. L.A. INT’L & COMP. L. REV. 1
(2005).
Alexander, Larry, The Constitution as Law, 6 CONST. COMMENT. 103 (1989).
Alexander, Larry & Solum, Lawrence B., Popular? Constitutionalism? 118 HARV. L.
REV. 1594 (2005).
Alexander, Larry & Schauer, Frederick,
Interpretation, 110 HARV. L. REV. 1359 (1997).
343
On
Extrajudicial
Constitutional
Alexy, Robert, A THEORY OF CONSTITUTIONAL RIGHTS (Julian Rivers trans., Oxford-New
York: Oxford University Press, 2010).
Allani, Alaya, The post-revolution Tunisian Constituent Assembly: controversy over
powers and prerogatives, 18 THE JOURNAL OF AFRICAN STUDIES 131 (2013).
Amenta, Edwin & Caren, Neal, The legislative, organizational, and beneficiary
consequences of state-oriented challengers, in THE BLACKWELL COMPANION TO SOCIAL
MOVEMENTS 461 (David A. Snow et. al. eds. Oxford: Blackwell Publishing, 2007).
Amenta, Edwin & Young, Michael, Democratic States and Social movements:
Theoretical Arguments and Hypotheses, 46 SOC. PROBS. 153 (1999).
Anderson, Lisa, Demystifying the Arab Spring. Parsing the differences between
Tunisia, Egypt, and Libya, 90 FOREIGN AFFAIRS 2 (2011).
Angel-Cabo, Natalia & Lovera Parmo, Domingo, Latin American social
constitutionalism: courts and popular participation, in SOCIAL AND ECONOMIC RIGHTS IN
THEORY AND PRACTICE: CRITICAL INQUIRIES 85 (Helena Alviar et al. eds., New York:
Routledge, 2015).
Arendt, Hannah, ON VIOLENCE (New York: Harcourt, Brace & World, 1970).
— BETWEEN PAST AND FUTURE: EIGHT
Penguin Classics, 2006).
EXERCISES IN POLITICAL THOUGHT
(London:
Árnason, Á. TH., A Review of the New Icelandic Constitution – popular sovereignty or
political confusion, 2011 TIJDSCHRIFT VOOR CONSTITUTIONEEL RECHT 342 (2011).
Aoudé, Ibrahim G., Egypt: Revolutionary Process and Global Capitalist Crisis, 35
ARAB STUDIES QUARTERLY 241 (2013).
Atria, Fernando, ¿Qué desacuerdos valen? La respuesta legalista [What
disagreements matter? The legalist answer], 8 IUS ET PRAXIS 419 (2002).
Baccaro, Lucio and Papadakis, Konstantinos, The downside of participatorydeliberative public administration, 7 SOC.-ECON. REV. 245 (2009).
Badiou, Alain, THE REBIRTH OF HISTORY: TIMES OF RIOTS AND UPRISINGS (Gregory Elliott
trans., London-New York: Verso 2012).
Bâli, Asli, Courts and constitutional transition: Lessons from the Turkish case, 11
INT’L J. CONSTIT. L. 666 (2013).
344
Balkin, Jack M., How Social Movements Change (or Fail to Change) the Constitution:
The Case of the New Departure, 39 SUFFOLK U. L. REV. 27 (2005-2006).
— CONSTITUTIONAL REDEMPTION. POLITICAL FAITH
(Cambridge: Harvard University Press, 2011).
IN
AN
UNJUST
WORLD
Balkin, Jack M. & Siegel, Reva B., Principles, Practices, and Social Movements, 154 U.
PA. L. REV. 927 (2006).
Barak, Aharon, THE JUDGE
2006).
IN A
DEMOCRACY (Princeton: Princeton University Press,
Barendt, Eric, FREEDOM OF SPEECH (Oxford: Oxford University Press, 2005 2nd ed.).
— Freedom of Expression, in THE OXFORD HANDBOOK OF COMPARATIVE
CONSTITUTIONAL LAW 891 (Michael Rosenfeld & András Sajó eds., Oxford:
Oxford University Press, 2012).
Barnum, David G., Freedom of Assembly and the Hostile Audience in Anglo-American
Law, 29 AM. J. COMP. L. 59 (1981).
Beck, Lewis W., Kant and the Right of Revolution, 32 JOURNAL OF THE HISTORY OF IDEAS
411 (1971).
Beitz, Charles R., POLITICAL EQUALITY. AN
Princeton University Press, 1989).
ESSAY IN DEMOCRATIC THEORY
(Princeton:
Bellamy, Richard, POLITICAL CONSTITUTIONALISM. A REPUBLICAN DEFENCE OF THE
CONSTITUTIONALITY OF DEMOCRACY (Cambridge: Cambridge University Press, 2007).
Bellei, Cristián & Cabalin, Cristian, Chilean Students Movements: Sustained Struggle
to Transform a Market-oriented Educational System, 15 CURRENT ISSUES IN
COMPARATIVE EDUCATION 113 (2013).
Bertoni, Eduardo (comp.), ¿ES LEGÍTIMA LA CRIMINALIZACIÓN DE LA PROTESTA SOCIAL?
DERECHO PENAL Y LIBERTAD DE EXPRESIÓN EN AMÉRICA LATINA [IS IT LEGITIMATE TO
CRIMINALIZE SOCIAL PROTEST? CRIMINAL LAW AND FREEDOM OF EXPRESSION IN LATIN
AMERICA] (Buenos Aires: Universidad de Palermo, 2010).
Biondi, Andrea, Free Trade, a Mountain Road and the Right to Protests: European
Economic Freedoms and Fundamental Individual Rights, 1 EUROPEAN HUMAN RIGHTS L.
REV. 51 (2004).
345
Bloustein, Edward J., INDIVIDUAL
Books, 1978).
AND
GROUP PRIVACY (New Brunswick: Transaction
Boa, Krista, Privacy outside the castle: surveillance technologies and reasonable
expectations of privacy in Canadian judicial reasoning, 4 SURVEILLANCE & SOC’Y 329
(2007).
Boduszynski, Mieczyslaw P. & Pickard, Duncan, Libya starts from scratch, 24
JOURNAL OF DEMOCRACY 86 (2013).
Brahimi, Alia, Libya’s Revolution, 16 THE JOURNAL OF AFRICAN STUDIES 605 (2011).
Brennan, Geoffrey & Pettit, Philip, Unveiling the vote, 20 BRIT. J. POL. SCI. 311 (2009).
Brenner, Susan W., The privacy privilege: law enforcement, technology, and the
Constitution, 7 J. TECH. L. & POL’Y 123 (2002).
Bronitt, Simon & Williams, George, Political Freedom as an outlaw: republican
theory and political protest, 16 ADELAIDE L. REV. 289 (1996).
Brown, Kimberly N., Anonymity, faceprints, and the Constitution, 21 GEO. MASON L.
REV. 409 (2014).
Brown, WENDY, STATES OF INJURY: POWER AND FREEDOM IN LATE MODERNITY (New Jersey:
Princeton University Press, 1995).
Burnstein, Paul et al., The Success of Political Movements: A Bargaining Perspective,
in THE POLITICS OF SOCIAL PROTEST: COMPARATIVE PERSPECTIVES ON STATES AND SOCIAL
MOVEMENTS 275 (J. Craig Jenkins & Bert Klandermans eds., Minneapolis: University
of Minnesota Press, 1995).
Butler, Judith, NOTES TOWARD A PERFORMATIVE THEORY
London: Harvard University Press, 2015).
OF
ASSEMBLY (Cambridge-
Cabalin, Cristian, Neoliberal education and student movements in Chile: inequalities
and malaise, 10 POLICY FUTURES IN EDUCATION 219 (2012).
Calhoun, Craig, “New Social Movements” of the Early Nineteenth Century, 17 SOC. SCI.
HIST. 385 (1993).
Carbonell, Miguel (ed.), TEORÍA DEL NEOCONSTITUCIONALISMO [Neo-constitutional
Theory] (Madrid: Editorial Trotta, 2005 2nd ed.).
346
Castells, Manuel, NETWORKS OF OUTRAGE AND HOPE: SOCIAL MOVEMENTS IN THE INTERNET
AGE (Cambridge: Polity, 2012).
Cepeda, Manuel, Privacy, in THE OXFORD HANDBOOK OF COMPARATIVE CONSTITUTIONAL
LAW 966 (Michael Rosenfeld & András Sajó eds., Oxford: Oxford University Press,
2012).
Cheh, Mary M., Demonstrations, security zones, and first amendment protection of
special places, 8 D.C. L. REV. 53 (2004).
Chemerinsky, Erwin, Content neutrality as a central problem of freedom of speech:
problems in the Supreme Court’s application, 74 S. CAL. L. REV. 49 (2000).
— In Defense of Judicial Review: A Reply to Professor Kramer, 92 CAL. L. REV.
1013 (2004).
Chernilo, Daniel, The critique of methodological nationalism: Theory and history,
106 THESIS ELEVEN 98 (2011).
Chesters, Graeme & Welsh, Ian, SOCIAL MOVEMENTS: THE KEY CONCEPTS (New York:
Routledge, 2011).
Christiano, Thomas, The Authority of Democracy, 11 THE JOURNAL
PHILOSOPHY 1 (2003).
OF
POLITICAL
Chomsky, Noam, OCCUPY! (Brooklyn: Zuccotti Park Press, 2012).
Chovanec, Donna M. & Benitez, Alexandra, The Penguin Revolution in Chile:
exploring the intergenerational learning in social movements, 3 J. CONTEMPORARY
ISSUES IN EDUCATION 39 (2008).
Christodoulidis, Emilios, Against Substitution: The Constitutional Thinking of
Disensus, in THE PARADOX OF CONSTITUTIONALISM: CONSTITUENT POWER AND
CONSTITUTIONAL FORM 189 (Martin Loughlin & Neil Walker eds., Oxford-New York:
Oxford University Press, 2008).
Chunn, Dorothy E. & Lacombe, Dany, Introduction, in Law as a Gendering Practice
2 (Dorothy E. Chunn & Dany Lacombe eds., Don Mills-New York: Oxford University
Press, 2000).
Clarke, Stephen, The Panopticon of the Public Protest: technology and surveillance, 4
RES COGITANS 4 (2013).
347
Cohen, Carl, CIVIL DISOBEDIENCE: CONSCIENCE, TACTICS,
Columbia University Press, 1971).
AND THE
LAW (New York:
Cohen, G. A., Base and Superstructure: A Reply to Hugh Collins, 9 OXFORD J. LEGAL.
STUD. 95 (1989).
Cohen, Jean L., Strategy or Identity: New Theoretical Paradigms and Contemporary
Social Movements, 52 SOC. RES. 663 (1985).
Cohen, Julie E., What privacy is for, 126 HARV. L. REV. 1904 (2013).
Colón-Ríos, Joel, Carl Schmitt and Constituent Power in Latin American Courts: The
Cases of Venezuela and Colombia, 18 CONSTELLATIONS 365 (2011).
— WEAK CONSTITUTIONALISM: DEMOCRATIC LEGITIMACY AND
CONSTITUENT POWER (London-New York: Routledge, 2012).
THE QUESTION OF
Colón-Ríos, Joel & Hutchinson, Allan C., Democracy and Revolution: An Enduring
Relationship? 89 DENVER U. L. REV. 593 (2012).
Comanducci, Paolo, Formas de (neo)constitucionalismo: un análisis metateórico
[Forms of (neo)constitutionalism: a metatheoretical analysis], 16 ISONOMÍA 89
(2002).
Constant, Benjamin, On the Liberty of the Ancients compared with that of the
moderns, in CONSTANT POLITICAL WRITINGS 307, 326 (Biancamaria Fontana ed.,
Cambridge: Cambridge University Press: 2003, 9th print.)
Cornell, Saul, Mobs, Militias, and Magistrates: Popular Constitutionalism and the
Whiskey Rebellion, 81 CHI.-KENT L. REV. 883 (2006).
Cover, Robert M., The Supreme Court, 1982 Term. Foreword: Nomos and Narrative,
97 HARV. L. REV. 4, 11 (1983-4).
Dahl, Robert A., ON POLITICAL EQUALITY (New Haven: Yale University Press, 2006).
Dauvergne, Peter & Lebaron, Genevieve, PROTEST INC. THE CORPORATIZATION
ACTIVISM (Cambridge: Polity, 2014).
OF
DeFronzo, James, REVOLUTIONS & REVOLUTIONARY MOVEMENTS (Boulder: Westview
Press, 1991).
348
Della Porta, Donatella, CAN DEMOCRACY BE SAVED:
SOCIAL MOVEMENTS (Cambridge: Polity, 2013).
PARTICIPATION, DELIBERATION AND
Della Porta, Donatella & Fillieule, Olivier, Policing Social Protest, in THE BLACKWELL
COMPANION TO SOCIAL MOVEMENTS 217 (David A. Snow et. al. eds. Oxford: Blackwell
Publishing, 2007).
De Smet, Brecht, Revolution and Counter-Revolution in Egypt, 78 SCIENCE & SOCIETY
11 (2014).
Diani, Mario, The Concept of Social Movements, 40 SOC. REV. 1 (1992).
van Dijk et al., Pieter, THEORY AND PRACTICE OF THE EUROPEAN CONVENTION ON HUMAN
RIGHTS (Antwerpen: Intersentia, 2006).
Dikeç, Mustafa, Space as a mode of political thinking, 43 GEOFORUM 669 (2012).
Donnelly, Tom, Making Popular Constitutionalism Work, 2012 WIS. L. REV. 159
(2012).
Donoso, Sofia, Dynamics of change in Chile: explaining the emergence of the 2006
Pingüino movement, 45 J. LAT. AMER. STUD. 1 (2013).
Douzinas, Costas, Athens Rising, 20 EUROPEAN URBAN & REGIONAL STUDIES 134 (2012).
— PHILOSOPHY AND RESISTANCE IN THE CRISIS (Cambridge: Polity Press, 2013).
Dryzek, John S., DELIBERATIVE DEMOCRACY AND BEYOND: LIBERALS, CRITICS,
CONTESTATIONS (Oxford: Oxford University Press, 2002).
Dryzek, John S. & Niemeyer, Simon, Discursive Representation, 102 AM. POL. SCI. REV.
481 (2008).
Dworkin, Ronald, A MATTER OF PRINCIPLE (Oxford: Oxford University Press, 1985).
— LAW’S EMPIRE (Cambridge: Harvard University Press, 1986).
— A MATTER OF PRINCIPLE (Cambridge: Harvard University Press, 1986).
— What is Equality? Part 4: Political Equality, 22 U.S.F. L. REV. 1 (19871988).
— FREEDOM’S LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION
(Cambridge: Harvard University Press, 1996)
— JUSTICE FOR HEDGEHOGS (Cambridge: Harvard University Press, 2011).
349
Eckstein, Susan, Power and Popular Protest in Latin America, in POWER AND POPULAR
PROTEST: LATIN AMERICAN SOCIAL MOVEMENTS 1 (Susan Eckstein ed., Berkeley-Los
Angeles: University of California Press, 2001).
Eide, Asbjørn, Economic and Social Rights as Human Rights, in ECONOMIC, SOCIAL AND
CULTURAL RIGHTS: A TEXTBOOK 9, 27-31 (Asbjørn Eide et al. eds., Dordrecht-Boston:
M. Nijhoff Publishers, 2001 2nd ed.).
Elkins, Zachary et al., Baghdad, Tokyo, Kabul …: Constitution Making in Occupied
States, 49 Wm. & Mary L. Rev. 1139 (2007-8).
Ely, John H., Flag Desecretation: A case study in the roles of categorization and
balancing in First Amendment analysis, 88 HARV. L. REV. 1482 (1975).
— DEMOCRACY AND DISTRUST: A THEORY
Harvard University Press, 1980).
OF
JUDICIAL REVIEW (Cambridge:
Eskridge, William N., Jr., Some Effects of Identity-Based Social Movements on
Constitutional Law on the Twentieth Century, 100 MICH. L. REV. 2062 (2002).
Fabre, Cécile, The Dignity of Rights, 20 OXFORD J. L. STUD. 271 (2000).
Fallon, Jr., Richard H., The core of an uneasy case for judicial review, 121 HARV. L.
REV. 1693 (2008).
Farrow, Trevor C. W., Negotiation, Mediation, Globalization Protests and Police:
Right Processes; Wrong System, Issues, Parties and Time, 28 QUEEN’S L. J. 665 (20022003).
Feldman, Noah, Imposed Constitutionalism 37 CONN. L. REV. 857 (2004-5).
Fenwick, Helen, The Right to Protest, the Human Rights Act and the Margin of
Appreciation, THE MODERN LAW REVIEW 492 (1999).
— Marginalising Human Rights: Breach of the Peace, “Kettling”, the Human
Rights Act and Public Protest, 2009 PUBLIC LAW 737 (2009).
Fenwick, Helen & Phillipson, Gavin, Public Protest. The Human Rights Act and
Judicial Responses to Political Expression, 2000 PUBLIC LAW 627 (2000).
Figueroa, Francisco, LLEGAMOS PARA QUEDARNOS. CRÓNICAS DE LA REVUELTA ESTUDIANTIL
[WE ARE HERE TO STAY. CHRONICLES OF THE STUDENT REVOLT] (Santiago: Lom Ediciones,
2013).
350
Fiss, Owen M., Free Speech and Social Structure, 71 IOWA L. REV. 1405 (1985-1986)
— Why the State?, 100 HARVARD L. REV. 781, 787 (1987).
— THE IRONY OF FREE SPEECH (Cambridge: Harvard University Press, 1996).
Franklin, David L., Popular Constitutionalism as presidential constitutionalism?, 81
CHI.-KENT L. REV. 1069 (2006).
Fraser, Nancy, Rethinking the Public Sphere: A Contribution to the Critique of
Actually Existing Democracy, 25-26 SOC. TEXT 56 (1990).
— Rethinking Recognition, 3 NEW LEFT REV. 107 (2000).
Freeman, Harrop A., The Right to Protest and Civil Disobedience, 41 IND. L. J. 228
(1966).
Friedman, Barry, Mediated Popular Constitutionalism, 101 MICHIGAN LAW REVIEW
2596 (2002-2003).
Friedrich, Carl J., The Political Theory of the New Democratic Constitutions, in
CONSTITUTIONS AND CONSTITUTIONAL TRENDS SINCE WORLD WAR II 13 (Arnold J. Zurcher
ed., New York: New York University Press, 1955 2nd ed.).
Fussey, Pete & Coaffee, Jon, Urban spaces of surveillance, in ROUTLEDGE HANDBOOK OF
SURVEILLANCE STUDIES 201 (Kirstie Ball et al. eds., New York: Routledge, 2012).
Gallie, W. B., Essentially Contested Concepts, 56 PROC. ARISTOTELIAN SOC. 167 (1956).
Gamson, William A., Bystanders, Public Opinion, and the Media, in THE BLACKWELL
COMPANION TO SOCIAL MOVEMENTS 242 (David A. Snow et. al. eds. Oxford: Blackwell
Publishing, 2007).
Gargarella, Roberto, Law and Social Protests, 6 CRIM. LAW & PHILOSOPHY 131 (2012).
Geer, Chris & McLaughlin, Eugene, We predict a riot? Public order policing, new
media environment and the rise of citizen journalism, 50 BR. J. CRIMINOLOGY 1041
(2010).
van Gelder, Sarah, How Occupy Wall Street Changes Everything, in THIS CHANGES
EVERYTHING: OCCUPY WALL STREET AND THE 99% MOVEMENT 1 (Sarah Van Gelder ed.,
San Francisco: Berret-Koehler Publishers, 2011-2).
351
Gerbaudo, Paolo, TWEETS AND THE STREETS: SOCIAL MEDIA AND CONTEMPORARY ACTIVISM
(London: Pluto Press, 2012).
Gilbert, Liette & Dikeç, Mustafa, Right to the City. Politics of citizenship, in SPACE
DIFFERENCE, EVERYDAY LIFE: READING HENRI LEFEBVRE 250 (Kanishka Goonewardena et
al. eds., New York: Routledge, 2008).
Ginsburg, Tom et al., When to Overthrow your Government: The Right to Resist in the
World’s Constitutions, 60 UCLA L. REV. 1184 (2013).
Glasius, Marlies & Pleyers, Geoffrey, The Global Movement of 2011: Democracy,
Social Justice and Dignity, 44 DEVELOPMENT AND CHANGE 547 (2013).
Goldsmith, Andrew John, Policing’s New Visibility, 50 BRITISH JOURNAL OF CRIMINOLOGY
914 (2010).
Goldstone, Jack A., More social movements of fewer? Beyond political opportunity
structures to relational fields, 33 THEORY & SOC’Y 333 (2004)
Grabowski, Andrzej, JURISTIC CONCEPT OF THE VALIDITY OF STATUTORY LAW: A CRITIQUE OF
CONTEMPORARY LEGAL NONPOSITIVISM (Berlin: Springer, 2009).
Graeber, David, Occupy Wall Street’s Anarchist Roots, in THE OCCUPY HANDBOOK 141
(Janet Byrne ed., New York: Back Bay Books, 2012).
Greenawalt, Kent, Free Speech Justifications, 89 COLUMBIA L. REV. 119 (1989).
— Free Speech in the United States and Canada, 55 LAW AND CONTEMPORARY
PROBLEMS 5 (1992).
— FIGHTING WORDS. INDIVIDUALS, COMMUNITIES, AND LIBERTIES OF SPEECH
(Princeton: Princeton University Press, 1995).
Guinier, Lani, Beyond Legislatures: social movements, social change, and the
possibilities of demosprudence. Courting the people: demosprudence and the
law/politics divide, 89 BOSTON U. L. REV. 539 (2009).
Gutman, Amy, Freedom of Association: An Introductory Essay, in FREEDOM
ASSOCIATION 3 (Amy Gutman ed., Princeton: Princeton University Press, 1998).
Habermas, Jürgen, New Social Movements, 21 TELOS 33 (1981).
352
OF
— THE STRUCTURAL TRANSFORMATION OF THE PUBLIC SPHERE. AN INQUIRY INTO A
CATEGORY OF BOURGEOIS SOCIETY (Thomas Burger trans., Cambridge: The MIT
Press, 1991).
— BETWEEN FACTS AND NORMS. CONTRIBUTIONS TO A DISCOURSE THEORY OF LAW
AND DEMOCRACY 359 (William Rehg trans., Cambridge: MIT Press, 1998).
Hamilton, alexander et al., THE FEDERALIST (Oxford-New York: Oxford University
Press, 2008) (1788).
Handler, Joel F., Postmodernism, Protest, And the New Social Movements, 26 LAW &
SOC’Y REV. 697 (1992).
Harcourt, Bernard, Political Disobedience, in OCCUPY: THREE INQUIRIES IN DISOBEDIENCE
45 (W.J.T. Mitchell et al. eds., Chicago-London: University of Chicago Press, 2013).
Hart, H.L.A., THE CONCEPT OF LAW (Peter Cane et al. eds., Oxford-New York: Oxford
University Press, 1997 2nd ed.).
— Postscript, in THE CONCEPT
eds., 1997).
Harvey, David, REBEL CITIES: FROM
(London-New York: Verso, 2012).
OF
LAW 269 (Penelope Bulloch & Joseph Raz
THE RIGHT TO THE
CITY
TO THE
URBAN REVOLUTION
Harvie Wilkinson III, J., COSMIC CONSTITUTIONAL THEORY: WHY AMERICANS ARE LOSING
THEIR INALIENABLE RIGHT TO SELF-GOVERNANCE (Oxford-New York: Oxford University
Press, 2012).
Hasen, Richard L., Vote Buying, 88 CAL. L. REV. 1323 (2000).
Hatem, Mervat F., The Arab Spring Meets the Occupy Wall Street Movement:
Examples of Changing Definitions of Citizenship in a Global World, 8 JOURNAL OF CIVIL
SOCIETY 401 (2012).
Heck, Edward & Ringelstein, Albert C., The Burger Court and the Primacy of Political
Expression, 40 W. POL. Q. 413 (1987).
Hellyer, H.A., Revolution in the Arab World: Egypt and its Challenges, 3 MIDDLE EAST
LAW AND GOVERNANCE 118 (2011).
Hirschl, Ran, TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES
CONSTITUTIONALISM (Cambridge: Harvard University Press, 2004).
353
OF THE NEW
Hobsbawm, Eric J., Cities and Insurrections, in REVOLUTIONARIES. CONTEMPORARY
ESSAYS 220 (New York: Pantheon Books, 1973).
Hollowell, Kelly J., Defining a person under the Fourteenth Amendment: a
constitutionally and scientifically based analysis, 14 REGENT U. L. REV. 67 (2001-2).
Holmes, Stephen, PASSION AND CONSTRAINT: ON THE THEORY
(Chicago-London: University of Chicago Press, 1995).
OF
LIBERAL DEMOCRACY
Holmes, Stephen & Sunstein, Cass R., THE COST OF RIGHTS: WHY LIBERTY
TAXES (New York: W. W. Norton, 1999)
Honneth, Axel, FREEDOM’S RIGHT. THE SOCIAL FOUNDATION OF DEMOCRATIC
Ganahl trans., New York: Columbia University Press, 2014).
DEPENDS ON
LIFE
(Joseph
Honohan, Iseult, CIVIC REPUBLICANISM (London-New York: Routledge, 2002).
Hostettler, John N. & Washburne, Thomas W., The Constitution’s Final Interpreter:
We the People, 8 REGENT U. L. REV. 13 (1997).
Housden, Oliver, Egypt: Coup d’ Etat or a Revolution Protected?, 158 THE RUSI
JOURNAL 72 (2013).
Huhn, Wilson, Assessing the constitutionality of laws that are both content-based
and content-neutral: the emerging constitutional calculus, 79 IND. L. J. 801 (2004).
Humphreys, Matthew, Free movement and roadblocks: the right to protest in the
single market, 6 ENVTL. L. REV. 190 (2004).
Hutchinson, Allan C., Waiting for Coraf (or the beatification of the Charter), 41 U.
TORONTO L.J. 332 (1991).
— THE PROVINCE OF JURISPRUDENCE DEMOCRATIZED (Oxford-New York: Oxford
University Press, 2009).
Hutchinson, Allan C. & Colón-Ríos, Joel, What’s Democracy got to do with it? A
Critique of Liberal Constitutionalism (Comparative Research in Law and Political
Economy Research Paper 29 Vol. 3 No 05, 2007).
— Democracy and Constitutional Change, 58 THEORIA 43 (2011).
Inazu, John D., The Forgotten Freedom of Assembly, 84 TULANE L. REV. 565 (2010).
354
Jarrett, James M. & Mund, Vernon A., The Right to Assembly, 9 N.Y.U. L. QUARTERLY
REV. 1 (1931).
Jebnoun, Noureddine, Introduction: Rethinking the Paradigm of “Durable” and
“Stable” Authoritarianism in the Middle East, in MODERN MIDDLE EAST
AUTHORITARIANISM: ROOTS, RAMIFICATIONS, AND CRISIS 1, (Noureddine Jebnoun et al.
eds., London-New York: Routledge, 2013).
Jenkins, J. Craig and Klandermans, Bert, The Politics of Social Protest, in THE POLITICS
OF SOCIAL PROTEST: COMPARATIVE PERSPECTIVES ON STATES AND SOCIAL MOVEMENTS 2 (J.
Craig Jenkins and Bert Klandermans eds., 1995).
Joffé, George, The Arab Spring in North Africa: origins and prospects, 16 THE JOURNAL
OF AFRICAN STUDIES 507 (2011).
Kalven, Jr., Harry, The Concept of the Public forum: Cox v. Louisiana, 1965 SUP. CR.
REV. 1 (1965).
Kamenka, Eugene, The Concept of a Political Revolution, in VIII NOMOS 122 (Carl J.
Friedrich ed., New York: Atherton, 1966).
Kahn, Paul W., POLITICAL THEOLOGY: FOUR NEW CHAPTERS ON THE CONCEPT OF SOVEREIGNTY
(New York: Columbia University Press: 2011).
Kant, Immanuel, PERPETUAL PEACE A PHILOSOPHICAL ESSAY (M. Campbell Smith trans.,
London: G. Allen & Unwin Ltd. Macmillan Co., 1917) (1795).
Keizer, Garret, PRIVACY (New York: Picador, 2012).
Kennelly, Jacqueline, The Quebec student protests: challenging neoliberalism one pot
at a time, 28 CRITICAL ARTS: SOUTH-NORTH CULTURAL & MEDIA STUDIES 135 (2014).
Kerton, Sarah, Tahrir, here? The influence of the Arab Uprisings on the Emergence of
Occupy, 11 SOCIAL MOVEMENT STUDIES 302 (2012).
Kingston, Rebecca, PUBLIC PASSION: RETHINKING THE GROUNDS
(Montréal-Ithaca: McGill-Queen’s University Press, 2011)
FOR
POLITICAL JUSTICE
Kommers, Donald P., THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF
GERMANY (Durham, Duke University Press, 1997 2nd ed.).
Koopmans, Ruud, Political. Opportunity. Structure. Some Splitting to Balance the
Lumping, 14 SOC. FORUM 93, 96 (1999).
355
Koskela, Hille, ‘Cam Era’ – the contemporary urban Panopticon, 1 SURVEILLANCE &
SOCIETY 292 (2003).
Kramer, Larry D., THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM
REVIEW (New York: Oxford University Press, 2004).
AND JUDICIAL
— “The Interest of the Man”: James Madison, Popular Constitutionalism, and
the Theory of Deliberative Democracy, 41 VAL. U. L. REV. 697 (2006).
Kriegel, Blandine, THE STATE AND THE RULE OF LAW (Marc A. LePain & Jeffrey C. Cohen
trans., Princeton: Princeton University Press, 1995).
Kriesi, Hanspeter, Political Context and Opportunity, in THE BLACKWELL COMPANION TO
SOCIAL MOVEMENTS 67 (David A. Snow et. al. eds. Oxford: Blackwell Publishing,
2007).
— The Populist Challenge, 37 WEST EUROPEAN POLITICS 361 (2014).
Lai, Derek, Public video surveillance by the State: Policy, Privacy legislation, and the
Charter, 45 ALTA. L. REV. 43 (2007).
Landau, David, The Importance of Constitution-Making, 89 DENVER U. L. REV. 611
(2012).
de Lange, Roel, The European Public Order, Constitutional Principles and
Fundamental Rights, 1 ERASMUS L. REV. 3 (2007).
Larémont, Ricardo René, Revolution, revolt, and reform in North Africa, in
REVOLUTION, REVOLT AND, REFORM IN NORTH AFRICA. THE ARAB SPRING AND BEYOND 1
(Ricardo René Larémont ed., London-New York: Routledge, 2013).
Laudani, Raffaele, DISOBEDIENCE IN WESTERN POLITICAL THOUGHT. A GENEALOGY (Jason
Francis McGimsey trans., Cambridge: Cambridge University Press, 2013).
Lenin, V.I., THE STATE AND THE REVOLUTION (Robert Service trans., London: Penguin
Classics 1992) (1918).
Lessig, Lawrence, REPUBLIC, LOST. HOW MONEY CORRUPTS CONGRESS—AND A PLAN TO STOP
IT (New York-Boston: Twelve, 2011).
Lever, Annabelle, Mill and the secret ballot: beyond coercion and corruption, 19
UTILITAS 354 (2007).
356
Lindahl, Hans, Constituent Power and Reflexive Identity: Towards an Ontology of
Collective Selfhood, in THE PARADOX OF CONSTITUTIONALISM: CONSTITUENT POWER AND
CONSTITUTIONAL FORM 9 (Martin Loughlin & Neil Walker eds., Oxford: Oxford
University Press, 2008).
Liolos, John, Erecting New Constitutional Cultures: The problems and promise of
constitutionalism post-Arab Spring, 36 B.C. INT’L & COMP. L. REV. 219 (2013).
Lipsky, Michael, Protest as a Political Resource, 62 AM. POL. SCI. REV. 1144 (1968).
Lobera, Josep, De movimientos a partidos. La cristalización electoral de la protesta
[From movements to political parties. The electoral crystallization of protest], 24
REVISTA ESPAÑOLA DE SOCIOLOGÍA [SPANISH JOURNAL OF SOCIOLOGY] 97 (2015).
Locke, John, TWO TREATISES OF GOVERNMENT (Peter Laslett ed., Cambridge:
Cambridge University Press 2005) (1698).
Loughlin, Martin, FOUNDATIONS
2010).
OF
PUBLIC LAW (Oxford: Oxford University Press,
Lustig, Nora et al., ¡Basta ya! Chilean Students say ‘enough’, in THE OCCUPY HANDBOOK
223 (Janet Byrne ed., New York: Back Bay Books, 2012).
Lynd, Staughton, Communal Rights, 62 TEX. L. REV. 1417 (1983-4).
Lyons, David, Moral Judgment, Historical Reality, and Civil Disobedience, 27
PHILOSOPHY & PUBLIC AFFAIRS 31 (1998).
McCarthy, John D. & McPhail, Clarck, The Institutionalization of Protest in the
United States, in THE SOCIAL MOVEMENTS SOCIETY: CONTENTIOUS POLITICS FOR A NEW
CENTURY 83 (David S. Meyer & Sidney Tarrow eds., Lanham: Rowman & Littlefield
Publishers, 1998).
— Places of protest: the public forum in principle and practice, 11
MOBILIZATION: AN INTERNATIONAL QUARTERLY 229 (2006).
MacCormick, Neil, INSTITUTIONS OF LAW: AN ESSAY IN LEGAL THEORY (Oxford-New York:
Oxford University Press, 2007).
Macdonald, Margaret, Natural Rights, in THEORIES OF RIGHTS 21 (Jeremy Waldron
ed., Oxford-New York: Oxford University Press, 1995 6th prin.).
357
Machiavelli, Niccolò, THE DISCOURSES (Bernard Crick ed., London-New York: Penguin
Classics, 2003) (1531).
McLeod, Kembrew, FREEDOM OF EXPRESSION®: RESISTANCE AND REPRESSION IN THE AGE OF
INTELLECTUAL PROPERTY (Minneapolis: University of Minnesota Press 2007).
MacPherson, James, Civil Disobedience and the Law: The Role of Legal Professionals
41 OSGOODE HALL LAW JOURNAL 371 (2003).
Mallat, Chibli, The Philosophy of the Middle East Revolution, Take One: Nonviolence,
3 Middle East Law and Governance 136 (2011).
Markoff, John, WAVES OF DEMOCRACY: SOCIAL MOVEMENTS
(Thousand Oaks, Calif.: Pine Forge Press, 1996).
AND
POLITICAL CHANGE
Martinez, Leo, Taxes, Moral, and Legitimacy 1994 BYU L. REV. 521 (1994).
Marx, Gary T., A Tack in the Shoe: neutralizing and resisting the new surveillance, 59
J. OF SOCIAL ISSUES 369 (2003).
Marx, Karl, CRITIQUE OF HEGEL’S ‘PHILOSOPHY OF RIGHT’ 20 (Joseph O’Malley ed.,
Cambridge: Cambridge University Press, 1982 rep.) (1843)
— On the Jewish Question, in THE MARX-ENGELS READER 26, 42 (Robert C.
Tucker ed., New York: Norton 1978 2nd ed.) (1844).
Mason, Paul, WHY IT’S STILL KICKING OFF EVERYWHERE: THE NEW GLOBAL REVOLUTIONS
(London-New York: Verso, 2013).
May, Christopher, The rule of law as the Grundnorm of the new constitutionalism, in
NEW CONSTITUTIONALISM AND WORLD ORDER 63 (Stephen Gill & A. Claire Cutler eds.,
Cambridge: Cambridge University Press, 2014).
Meiklejohn, Alexander, The First Amendment is an Absolute, 1961 SUP. CT. REV. 245
(1961).
Meyer, David S. & Minkoff, Debra C., Conceptualizing Political Opportunity, 82 SOC.
F. 1457 (2003-2004)
Mill, John Stuart, On Liberty, in J.S. MILL: ON LIBERTY AND OTHER WRITINGS 1 (Stefan
Collini ed., Cambridge: Cambridge University Press, 1989) (1859).
358
Miller, James, Is Democracy Still in the Streets?, in THE OCCUPY HANDBOOK 173 (Janet
Byrne ed., New York: Back Bay Books, 2012).
Milton, John, AREOPAGITICA, 43 (with a commentary by Sir Richard C. Jebb,
Cambridge: University Press 1918) (1644).
Mitchell, Don, THE RIGHT TO THE CITY. SOCIAL JUSTICE AND THE FIGHT
(New York: Guilford Press, 2003).
FOR
PUBLIC SPACE
— Introduction: Public Space and the City, 17 URBAN GEOGRAPHY 127 (1996).
— Political violence, order, and the legal construction of public space: power
and the public forum doctrine, 17 URBAN GEOGRAPHY 152 (1996).
— The Liberalization of Free Speech: Or, How Protest in Public Space is
Silenced, in SPACES OF CONTENTION. SPATIALITIES AND SOCIAL MOVEMENTS 47
(Walter Nicholls et al., eds., London-New York: Routledge, 2013).
Mitchell, Don & Staeheli, Lynn A., Permitting Protest: Parsing the Fine Geography of
Dissent in America, 29 INTERNATIONAL JOURNAL OF URBAN AND REGIONAL RESEARCH 796
(2005).
Moon, Richard, THE CONSTITUTIONAL PROTECTION OF FREEDOM OF EXPRESSION (Toronto:
University of Toronto Press, 2000).
Moore, Adam D., PRIVACY RIGHTS. MORAL AND LEGAL FOUNDATIONS (University Park: The
Pennsylvania State University Press, 2010).
Mósesdóttir, Lilja, Iceland, 14 EUR. SOC’Y 141 (2012).
Mouffe, Chantal, THE DEMOCRATIC PARADOX (London-New York: Verso, 2000 repr.
2009).
— THE DEMOCRATIC PARADOX (London-New York: Verso, 2000).
— ON THE POLITICAL (London-New York: Routledge, 2005).
— AGONISTICS: THINKING THE WORLD POLITICALLY (London-Brooklyn: Verso,
2013).
Murray, Kate, The ‘reasonable expectation of privacy test’ and the scope of protection
against unreasonable search and seizure under Section 8 of the Charter of Rights and
Freedoms, 18 OTTAWA L. REV. 25 (1986).
Nackenoff, Carol, Is there a political tilt to “juristocracy”?, 65 MD. L. REV. 139 (2006).
359
Negri, Antonio, INSURGENCIES: CONSTITUENT POWER AND THE MODERN STATE (Maurizia
Boscagli trans., Minneapolis: University of Minnesota Press, 1999).
Nicholls, Walter et al., Introduction: Conceptualizing the Spatialities of Social
Movements, in SPACES OF CONTENTION. SPATIALITIES AND SOCIAL MOVEMENTS 1 (Walter
Nicholls et al., eds., London-New York: Routledge, 2013).
Nichter, Simeon, Vote buying or turnout buying? Machines politics and the secret
ballot, 102 AM. POL. SCI. REV. 19 (2008).
Nino, Carlos Santiago, THE CONSTITUTION OF DELIBERATIVE DEMOCRACY (New Haven:
Yale University Press, 1996).
Nissenbaum, Helen, Toward an Approach to Privacy in Public: Challenges of
Information Technology, ETHICS & BEHAVIOR 207 (1997).
— Privacy as Contextual Integrity, 79 WASHINGTON L. REV. 119 (2004).
Nussbaum, Martha C., POLITICAL EMOTIONS: WHY LOVE MATTERS
(Cambridge-London: Harvard University Press, 2013).
FOR
JUSTICE
Oberleitner, Gerd, Does enforcement matter?, in THE CAMBRIDGE COMPANION TO HUMAN
RIGHTS LAW 249 (Conor Gearty & Costas Douzinas eds., Cambridge-New York:
Cambridge University Press, 2012).
Offe, Claus, New Social Movements: Challenging the Boundaries of Institutional
Politics, 52 SOC. RES. 817 (1985).
O’Neill, Kevin F., Disentangling the Law of Public Protest, 45 LOYOLA L. REV. 411
(1999).
— Privatizing public forums to eliminate dissent, 5 FIRST AMEND. L. REV. 201
(2006-2007).
Opp, Karl-Dieter, THE RATIONALITY OF POLITICAL PROTEST: A
RATIONAL CHOICE THEORY (Boulder: Westview Press, 1989).
COMPARATIVE ANALYSIS OF
— THEORIES OF POLITICAL PROTEST AND SOCIAL MOVEMENTS: A MULTIDISCIPLINARY
INTRODUCTION, CRITIQUE, AND SYNTHESIS (London-New York: Routledge, 2009).
Osman Salih, Kamal Eldin, The Roots and Causes of the 2011 Arab Uprisings, 35 ARAB
STUDIES QUARTERLY 184 (2013).
360
Ovejero, Félix, ¿IDIOTAS O CIUDADANOS? EL 15-M Y LA TEORÍA DE LA DEMOCRACIA [IDIOTS OR
CITIZENS? THE 15-M AND DEMOCRATIC THEORY] (Barcelona: Intervención Cultural,
2013).
Papadakis, Elim, Social Movements, Self-limiting Radicalism and the Green Party in
West Germany, 22 SOCIOLOGY 433 (1988).
Parker, Richard D., “Here the People rule”: A constitutional populist manifesto, 27
VAL. U. L. REV. 531 (1993).
Paton-Simpson, Elizabeth, Privacy and the reasonable paranoid: the protection of
privacy in public places, 50 U. TORONTO L.J. 305 (2000).
le Pere, Garth, The Middle East, North Africa, and the ‘Arab Spring.’ Towards
revolutionary change or authoritarian adaption? 43 AFRICA INSIGHT 1 (2013).
Pettit, Philip, REPUBLICANISM: A THEORY OF FREEDOM AND GOVERNMENT (Oxford: Oxford
University Press, 2002 rep.).
— Legitimacy and Justice in Republican Perspective, 65 CURRENT LEGAL
PROBLEMS 59 (2012).
— ON THE PEOPLE’S TERMS: A REPUBLICAN THEORY AND MODEL OF DEMOCRACY
(Cambridge: Cambridge University Press, 2012).
— JUST FREEDOM. A COMPASS FOR A COMPLEX WORLD (New York-London: W.W.
Norton & Company, 2014).
Post, Robert C., The Constitutional Concept of Public Discourse: Outrageous Opinion,
Democratic Deliberation, and Hustler Magazine v. Falwell, 103 HARVARD LAW REVIEW
601 (1990).
— CONSTITUTIONAL DOMAINS. DEMOCRACY, COMMUNITY, MANAGEMENT
(Cambridge: Cambridge University Press, 1995).
— Law and Cultural Conflict, 78 Chi.-Kent L. Rev. 485 (2003).
— Foreword: Fashioning the legal Constitution: Culture, Courts, and Law, 117
HARV. L. REV. 4 (2003-4).
— Who’s Afraid of Jurispathic Courts?: Violence and Public Reason in Nomos
and Narrative, 17 YALE J. L. & HUMAN. 9 (2005).
— DEMOCRACY, EXPERTISE, ACADEMIC FREEDOM. A FIRST AMENDMENT
JURISPRUDENCE FOR THE MODERN STATE (New Haven: Yale University Press,
2012).
Post, Robert C. & Siegel, Reva B., Protecting the Constitution from the People:
Juricentric Restrictions on Section Five Power 78 IND. L.J. 1 (2003).
361
— Law and cultural conflict, 78 CHICAGO-KENT LAW REVIEW 485 (2003).
— Popular Constitutionalism, Departamentalism, and Judicial Supremacy, 92
CAL. L. REV. 1027, 1029 (2004)
— Roe Rage: Democratic Constitutionalism and Backlash, 42 HARV. C.R.-C.L. L.
REV. 373 (2007).
— Democratic Constitutionalism, in THE CONSTITUTION IN 2020 25-6 (Jack M.
Balkin & Reva B. Siegel eds., Oxford-Toronto: Oxford University Press,
2009).
Powe, Jr., L. A., Are “The People” Missing in Action (and Should Anyone Care)? 83 TEX.
L. REV. 855 (2005).
Powell, Jr., G. Bingham, The Chain of Responsiveness, 15 J. DEMOCRACY 91 (2004).
Pozen, David, Judicial Elections as Popular Constitutionalism, 110 COLUM. L. REV.
2047 (2010).
Purdy, Jedediah, Presidential Popular Constitutionalism, FORDHAM L. REV. 1837
(2009).
Quill, Lawrence, CIVIL DISOBEDIENCE: (UN)COMMON SENSE
York: Palgrave Macmillan, 2009).
IN
MASS DEMOCRACIES (New
Quint, Peter E., CIVIL DISOBEDIENCE AND THE GERMAN COURTS: THE PERSHING MISSILE
PROTESTS IN COMPARATIVE PERSPECTIVE (London-New York: Routledge-Cavendish,
2008).
Rafail, Patrick, Asymmetry in Protest control? Comparing protest policing patters in
Montreal, Toronto, and Vancouver 1998-2004, 15 MOBILIZATION 489 (2010).
Rancière, Jacques, HATRED OF DEMOCRACY (Steve Corcoran trans., London-New York:
Verso, 2014).
Rawls, John, POLITICAL LIBERALISM (New York: Columbia University Press, 1996).
— A THEORY OF JUSTICE (Cambridge: Harvard University Press, 1999 rev. ed.).
Raz, Joseph, THE AUTHORITY OF LAW: ESSAYS ON LAW AND MORALITY (Oxford-New York:
Oxford University Press, 1979).
— Legal Rights, 4 OXFORD J. OF LEGAL STUDIES 1 (1984).
362
— THE AUTHORITY OF LAW: ESSAYS ON LAW
Oxford University Press, 2009 2nd ed.).
AND
MORALITY (Oxford-New York:
Reeve, Andrew & Ware, Alan, ELECTORAL SYSTEMS: A
INTRODUCTION (Abingdon: Routledge, 1992).
THEORETICAL AND COMPARATIVE
Robert B. Reich, Occupy Democracy, in OCCUPY HANDBOOK THE OCCUPY HANDBOOK 362
(Janet Byrne ed., New York: Back Bay Books, 2012).
Roach, Kent, THE SUPREME COURT ON TRIAL: JUDICIAL ACTIVISM OR DEMOCRATIC DIALOGUE
(Toronto: Irwin Law, 2001).
Roberts, John Michael, Public Spaces of Dissent, 2 SOCIOLOGY COMPASS 654 (2008).
Ronan, William J., English and American courts and the definition of war, 31 AM. J.
INTL’ L. 642 (1937).
Rousseau, Jean-Jacques, Of the Social Contract, in THE SOCIAL CONTRACT AND OTHER
LATER POLITICAL WRITINGS 39 (Victor Gourevitch ed. & trans., Cambridge: Cambridge
University Press, 2003 repr.) (1762).
Rummens, Stefan, Democracy as a Non-Hegemonic Struggle? Disambiguating
Chantal Mouffe’s Agonistic Model of Politics, 16 CONSTELLATIONS 277 (2009).
Rutledge, Njeri Mathis, A time to Mourn: balancing the right to free speech against
the right of privacy in funeral picketing, 67 Maryland L. Rev. 295 (2008).
Sager, Lawrence G., JUSTICE IN PLAINCLOTHES: A THEORY
PRACTICE (New Haven: Yale University Press, 2004).
OF
AMERICAN
CONSTITUTIONAL
Sajó, András, CONSTITUTIONAL SENTIMENTS (New Haven & London: Yale University
Press, 2011)
Sánchez, Raúl, 15M: Something Constituent This Way Comes, 11 SOUTH ATLANTIC
QUARTERLY 573 (2012).
van de Sande, Mathijs, The Prefigurative Politics of Tahrir Square-An Alternative
Perspective on the 2011 Revolutions, 19 RES PUBLICA 223 (2013).
Sarat, Austin, Situating Law Between the Realities of Violence and the Claims of
Justice, in Law, VIOLENCE, AND THE POSSIBILITY OF JUSTICE 3 (Austin Sarat ed.,
Pirinceton-Oxford: Princeton University Press, 2001).
363
Sarat, Austin & Simon, Jonathan, Beyond Legal Realism? Cultural Analysis, Cultural
Studies, and the Situation of Legal Scholarship, 13 YALE J. L. & HUMAN. 3 (2001).
Sassen, Saskia, THE GLOBAL CITY: NEW YORK, LONDON, TOKYO (Princeton: Princeton
University Press, 1991).
— The Global Street: Making the Political, 8 GLOBALIZATIONS (2011).
— Does the City have a Speech?, 25 PUBLIC CULTURE 209 (2013).
Schauer, Frederick, FREE SPEECH: A
Cambridge University Press, 1982).
PHILOSOPHICAL ENQUIRY
(Cambridge-New York:
Schmitt, Carl, CONSTITUTIONAL THEORY 271 (Jeffrey Seitzer trans., Durham: Duke
University Press 2008) (1928).
Schönsteiner, Judith et al., Reflections on the Human Rights Challenges of
Consolidating Democracies: Recent Developments in the Inter-American System of
Human Rights, 11 HUMAN RIGHTS LAW REVIEW 362 (2011).
De Schutter, Oliver, INTERNATIONAL HUMAN RIGHTS LAW (Cambridge-New York:
Cambridge University Press, 2011 repr.)
Seidman, Louis Michael, ON CONSTITUTIONAL DISOBEDIENCE (New York: Oxford
University Press, 2012).
Shapiro, Scott J., LEGALITY (Cambridge: Harvard University Press, 2011).
Shihade, Magid et al., The season of revolution: the Arab Spring and European
mobilizations, 4 INTERFACE 1 (2012).
Siegel, Reva, Why Equal Protections No Longer Protects: The Evolving Forms of
Status-Enforcing State Actions, 49 STAN. L. REV. 1111 (1996-1997).
— Why Equal Protection no Longer Protects: The evolving forms of statusenforcing state action, 49 STAN. L. REV. 1111 (1997)
— Constitutional Culture, Social Movement Conflict and Constitutional
Change: The Case of the de facto ERA, 94 CAL. L. REV. 1, 3 (2006).
Simmel, Georg, The Stranger, in THE SOCIOLOGY OF GEORG SIMMEL 402 (Kurt H. Wolff
trans. & ed., New York-London: The Free Press, 1950) (1908).
Sitze, Adam, Foreword, in RAFFAELE LAUDINI, DISOBEDIENCE IN WESTERN POLITICAL
THOUGHT. A GENEALOGY vii (Jason Francis McGimsey trans., Cambridge: Cambridge
University Press, 2013).
364
Simoni, Stephen J., “Who goes there?”—Proposing a model anti-mask act, 61
FORDHAM L. REV. 241 (1992).
Skinner, Quentin, LIBERTY BEFORE LIBERALISM 26 (Cambridge: Cambridge University
Press, 2006 9th prin.)
— The Genealogy of the Modern State 162 PROC. BRIT. ACAD. 325 (2009).
Slobogin, Christopher, Public privacy: camera surveillance of public places and the
right to anonymity, 72 MISS. L.J. 213 (2002-2003).
Smith, Steven D., THE CONSTITUTION &
University Press, 1998).
THE
PRIDE
OR
REASON (New York: Oxford
Smith, Neil & Low, Setha, Introduction: The Imperative of Public Space, in THE
POLITICS OF PUBLIC SPACE 1 (Setha Low & Neil Smith eds., New York: Routledge,
2006).
Smith, Steven D., THE CONSTITUTION &
University Press, 1998).
THE
PRIDE
OF
REASON (New York: Oxford
Snow, David A., Social Movements as Challenges to Authority: Resistance to
emerging Conceptual Hegemony, in RESEARCH IN SOCIAL MOVEMENTS, CONFLICTS AND
CHANGE VOL. 25, 3 (Daniel J. Myers and Daniel M. Cress eds., Amsterdam-Oxford:
Elsevier JAI, 2004).
Snow et al., David A. Mapping the Terrain, in THE BLACKWELL COMPANION TO SOCIAL
MOVEMENTS 3 (David A. Snow et. al. eds. Oxford: Blackwell Publishing, 2007).
Solove, Daniel J., The virtues of knowing less: justifying privacy protections against
disclosure, 53 DUKE L. J. 967 (2003).
— A Taxonomy of Privacy, 154 UNIVERSITY OF PENNSYLVANIA L. REV. 477
(2006).
— UNDERSTANDING PRIVACY (Cambridge: Harvard University Press, 2008).
— NOTHING TO HIDE: THE FALSE TRADEOFF BETWEEN PRIVACY AND SECURITY (New
Haven: Yale University Press, 2011).
Sparke, Matthew, From Global Dispossession to Local Repossession: Towards a
Worldly Cultural Geography of Occupy Activism, in THE WILEY-BLACKWELL COMPANION
TO CULTURAL GEOGRAPHY 387 (Nuala C. Johnson et al., eds., Malden-OxfordChichester: John Wiley & Sons, 2013).
365
Spector, Horacio, Judicial Review, rights, and democracy, 22 L. & PHIL. 285 (2003).
Starr, Amory et al., The impacts of State Surveillance on political assembly and
association: a socio-legal analysis, 31 QUALITATIVE SOCIOLOGY 251 (2008).
Stavrides, Stavros, Squares in Movement, 11 SOUTH ATLANTIC QUARTERLY 585 (2012).
Stone Sweet, Alec, GOVERNING WITH JUDGES: CONSTITUTIONAL POLITICS IN EUROPE (Oxford:
Oxford University Press, 2000).
Sunstein, Cass R., Constitutionalism and Secession, 58 U. Chi. L. Rev. 633 (1991).
— REPUBLIC.COM (Princeton: Princeton University Press, 2001).
— REPUBLIC.COM 2.0 26 (Princeton: Princeton University Press, 2007)
Svensson-McCarthy, Anna-Lena, THE INTERNATIONAL LAW OF HUMAN RIGHTS AND STATES
OF EXCEPTION: WITH SPECIAL REFERENCE TO THE TRAVAUX PRÉPARATOIRES AND CASE-LAW OF
THE INTERNATIONAL MONITORING ORGANS (The Hague: M. Nijhoff Publishers, 1998).
Tamanaha, Brian Z., Understanding Legal Pluralism: Past to Present, Local to Global,
30 SYDNEY L. REV. 375 (2008).
Tarrow, Sidney, States and Opportunities: The political structuring of social
movements, in COMPARATIVE PERSPECTIVES ON SOCIAL MOVEMENTS. POLITICAL
OPPORTUNITIES, MOBILIZING STRUCTURES, AND CULTURAL FRAMINGS 41 (Doug McAdam et
al., eds., Cambridge: Cambridge University Press, 1996).
— POWER IN MOVEMENT: SOCIAL MOVEMENTS AND CONTENTIOUS POLITICS
(Cambridge-New York: Cambridge University Press, 2011 3rd ed.).
Taylor, Charles, Some Conditions of a Viable Democracy, in DEMOCRACIA REPUBLICANA
/ REPUBLICAN DEMOCRACY (Renato Cristi & Ricardo Tranjan eds., Santiago: Lom
Ediciones, 2012).
Taylor, Verta & Van Dyke, Nella, “Get up, Stand up”: Tactical Repertoires of Social
Movements, in THE BLACKWELL COMPANION TO SOCIAL MOVEMENTS 262 (David A. Snow
et. al. eds. Oxford: Blackwell Publishing, 2007).
Teachout, Zephyr, Zephy Teachout, The Anti-Corruption Principle, 94 CORNELL L.
REV. 241 (2009).
366
— The unenforceable corrupt contract: corruption and Nineteenth-Century
law, in MONEY, POLITICS, AND THE CONSTITUTION: BEYOND CITIZENS UNITED 135
(Monica Youn ed., New York: Century Foundation Press, 2011).
Tejerina, Benjamín et al., From indignation to occupation: A new wave of global
mobilization, 61 CURRENT SOCIOLOGY MONOGRAPH 377 (2013).
Teubner, Gunther, CONSTITUTIONAL FRAGMENTS: SOCIETAL CONSTITUTIONALISM AND
GLOBALIZATION (Gareth Teubner trans., Oxford: Oxford University Press 2012).
Thompson, E.P., William Morris, in PERSONS
(London: Merlin Press, 1994).
AND
POLEMICS, HISTORICAL ESSAYS
Thorburn, Elise Danielle, Social Media, subjectivity, and surveillance: moving on
from Occupy, the rise of live streaming video, 11 COMMUNICATION & CRITICAL/CULTURAL
STUDIES 52 (2014).
Thoreau, Henry David, Civil Disobedience, in THOREAU: POLITICAL WRITINGS (Nancy L.
Rosenblum ed., Cambridge: Cambridge University Press, 2000 repr.) (1849).
Tierney, Stephen, Whose political Constitution? Citizens and referendums, 14
GERMAN L. J. 2185 (2013).
Tilly, Charles, Social Movements as Historically Specific Clusters of Political
Performances, 38 BERKELEY J. SOC. 1 (1993-1994).
— Social movements and (all sorts of) other political interactions – local,
national, and international – including identities, 27 THEORY & SOC’Y 453
(1998).
— CHARLES TILLY, REGIMES AND REPERTOIRES (Chicago-London: The University
of Chicago Press, 2006).
— SOCIAL MOVEMENTS, 1768-2004 (Boulder: Paradigm Publishers, 2009).
Tomkins, Adam, OUR REPUBLICAN CONSTITUTION (Oxford-Portland, Hart Publishing
2005).
— PUBLIC LAW (Oxford-New York: Oxford University Press, 2003).
— The Role of Courts in the Political Constitution, 60 U. TORONTO L. J. 1
(2010).
Torres, Gerald & Guinier, Lani, The Constitutional Imaginary: just stories about we
the people, 71 MD. L. REV. 1052 (2012).
367
— Lani Guinier & Gerald Torres, Changing the Wind: Notes Toward a
Demosprudence of Law and Social Movements, 123 YALE L. J. 2740, 2749
(2014).
Trakman, Leon E., R. v. Oakes 1986-1997: Back to the Drawing Board, 36 OSGOODE
HALL LAW JOURNAL 83 (1998).
Tucker, Kenneth H., How New are the New Social Movements? 8 THEORY, CULTURE &
SOC’Y 75 (1991).
Tully, James, The Unfreedom of the Moderns in Comparison to Their Ideals of
Constitutional Democracy, 65 MOD. L. REV. 204 (2002).
Tushnet, Mark, TAKING THE CONSTITUTION AWAY
Princeton University Press, 1999).
FROM THE
COURTS (Princeton:
— The Constitutional of Civil Society, 75 Chi.-Kent L. rev. 379 (1999-2000).
— Popular Constitutionalism as Political Law, 81 CHI.-KENT L. REV. 991
(2006).
— WHY THE CONSTITUTION MATTERS (New Haven: Yale University Press, 2010).
Ullrich, Peter & Wollinger, Gina Rosa, A surveillance studies perspective on protest
policing: the case of video surveillance of demonstrations in Germany, 3 INTERFACE 12
(2011).
Unger, Roberto, DEMOCRACY REALIZED: THE PROGRESSIVE ALTERNATIVE (New York:
Verso, 1998).
Urbinati, Nadia, MILL ON DEMOCRACY: FROM THE ATHENIAN
GOVERNMENT (Chicago: University of Chicago Press, 2002).
POLIS TO REPRESENTATIVE
— REPRESENTATIVE DEMOCRACY. PRINCIPLES & GENEALOGY (Chicago: Chicago
University Press, 2006).
— DEMOCRACY DISFIGURED: OPINION, TRUTH, AND THE PEOPLE (Cambridge:
Harvard University Press, 2014).
— Free Speech as the citizen’s right, in CITIZENS DIVIDED. CAMPAIGN FINANCE
REFORM AND THE CONSTITUTION 125 (Robert C. Post, Cambridge-London:
Cambridge University Press, 2014).
— A Revolt against Intermediary Bodies, 22 CONSTELLATIONS 477 (2015).
Urbinati, Nadia & Warren, Mark E., The Concept of Representation in Contemporary
Democratic Theory, 11 ANN. REV. POL. SCI. 387 (2008)
368
Van Dyke, Nella et al., The Target of social Movements: Beyond a focus on the State,
in RESEARCH IN SOCIAL MOVEMENTS, CONFLICTS AND CHANGE VOL. 25, 27 (Daniel J. Myers
and Daniel M. Cress eds., Amsterdam-Oxford: Elsevier JAI, 2004).
Virilio, Paul, THE ADMINISTRATION
Semiotext(e) 2012).
OF
FEAR (Ames Hodges trans., Los Angeles:
Viroli, Maurizio, REPUBLICANISM (Anthony Shugaar trans., New York: Hill & Wang,
2002)
Volokh, Eugene, Speech as Conduct: generally applicable laws, illegal courses of
conduct, “situation-altering utterances”, and the uncharted zones, 90 CORNELL L. REV.
1277 (2005).
Walder, Andrew G., Political Sociology and Social Movements, 35 ANN. REV. SOC. 393
(2009).
Waldron, Jeremy, (ed.) ‘NONSENSE UPON STILTS’: BENTHAM, BURKE,
RIGHTS OF MAN (London-New York: Methuen, 1987).
AND
MARX
ON THE
— THE LAW (London-New York: Taylor & Francis, 1990).
— A Right-based Critique of Constitutional Rights, 13 OXFORD J. LEGAL STUDIES
18 (1993).
— THE DIGNITY OF LEGISLATION 154-5 (Cambridge: Cambridge University
Press, 1999).
— LAW AND DISAGREEMENT (Oxford-New York: Oxford University Press,
1999).
— GOD, LOCKE AND EQUALITY: CHRISTIAN FOUNDATIONS IN LOCKE’S POLITICAL
THOUGHT (New York: Cambridge University Press, 2002).
— Are constitutional norms legal norms? 75 FORDHAM L. REV. 1697 (2006).
— The Core of the Case against Judicial Review, 116 YALE L. J. 1346 (2006).
— The Concept and the Rule of Law, 43 GA. L. REV. 1 (2008-2009).
— Judges as moral reasoners, 7 INT’L J. CONST. L. 2 (2009).
— Representative Lawmaking, 89 B.U. L. REV. 335 (2009).
— TORTURE, TERROR, AND TRADE-OFFS: PHILOSOPHY FOR THE WHITE HOUSE
(Oxford-New York: Oxford University Press, 2010).
— THE RULE OF LAW AND THE MEASURE OF PROPERTY (Cambridge: Cambridge
University Press 2012).
— DIGNITY, RANK, AND RIGHTS 19-21 (New York: Oxford University Press,
2012).
— THE HARM IN HATE SPEECH (Cambridge-London: Harvard University Press,
2012).
— How law protects dignity, 71 CAMBRIDGE LAW JOURNAL 200 (2012).
369
— Book Review: Never Mind the Constitution, 127 HARV. L. REV. 1147 (2014).
Walker, Neil, The Idea of Constitutional Pluralism, 65 THE MODERN L. REV. 317
(2002).
Walzer, Michael, POLITICS AND PASSION. TOWARD A MORE EGALITARIAN LIBERALISM (New
Haven: Yale University Press, 2004).
Warren, Samuel & Brandeis, Louis, The Right to Privacy, 4 HARV. L. REV. 193 (18901891).
Webber, Grégoire C. N., THE NEGOTIABLE CONSTITUTION. ON
(Cambridge: Cambridge University Press, 2009).
THE LIMITATION OF RIGHTS
Weldon, S. Laurel, WHEN PROTEST MAKES POLICY: HOW SOCIAL MOVEMENTS REPRESENT
DISADVANTAGED GROUPS (Ann Arbor, The University of Michigan Press, 2011).
— Beyond Bodies: Institutional Sources of Representation for Women in
Democratic Policymaking, 64 J. POL. 1153 (2002).
Westin, Alan F., PRIVACY AND FREEDOM (New York: Atheneum, 1967).
Whitman, James Q., The two Western cultures of privacy: Dignity versus Liberty, 113
YALE L. J. 1151 (2004).
Winet, Evan Darwin, Face-veil bans and anti-masks laws: State interest and the right
to cover the face, 35 HASTINGS INT’L & COMP. L. REV. 217 (2012).
Writers for the 99%, OCCUPYING WALL STREET: THE INSIDE STORY OF AN ACTION THAT
CHANGED AMERICA (Chicago: Haymarket Books, 2012).
Zick, Timothy, Property, Place, and Public Discourse, 21 WASH. U. J. L. & POL’Y 173
(2006).
Zilber, Neri, Occupying the Israeli Street: The tents protest movement and Social
justice in the Holy Land, in THE OCCUPY HANDBOOK 232 (Janet Byrne ed., New York:
Back Bay Books, 2012).
Žižek, Slavoj, THE YEAR OF DREAMING DANGEROUSLY (London-New York: Verso, 2012).
CASE LAW (BY JURISDICTION)
Canada
370
- Hunter et al. v Southam Inc. [1984] 2 S.C.R. 145.
- R. v. Oakes, [1986] 1 S.C.R. 103.
- Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139.
- RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 SCR 199
- Reference re Secession of Quebec, [1998] 2 S.C.R. 217.
- Batty et al. v. The City of Toronto, 2011 ONSC 6862.
- Calgary (City) v. Bullock (Occupy Calgary), 2011 ABQB 764
- United Food and Commercial Workers, Local 401 v. Alberta, [2011] 509 AR 150.
- R. v Ward, [2012] 296 O.A.C. 298.
- Caripis v. Victoria Police (Health and Privacy), [2012] VCAT 1472.
- R. v. Zarafonitis 2013 ONCJ 570 (CanLII).
Chile
- Tribunal Constitucional de Chile, STC Rol No 591, 11th Jan. 2011.
- Corte Suprema [Supreme Court], Rol No 10.692-2011, 24 January 2012.
Colombia
- Corte Constitucional [C.C.] [Constitutional Court], julio 14, 1992, Sentencia T456/92.
- Corte Constitucional [C.C.] [Constitutional Court], junio 5, 1992, Sentencia T406/92.
- Corte Constitucional [C.C.] [Constitutional Court], febrero 22, 2011, Sentencia T110/11.
European Court of Human Rights
- Case of Plattform “Ärzte Für Das Leben” v. Austria, [1988] EHRR 204.
- Ezelin v. France, [1992] EHRR 362.
- Case of Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, HUM.
RTS. CASE DIG. 739 (2001).
- Case of Ivanov and others v. Bulgaria, no. 46336/99, ECHR 2005.
- Case of Bukta and others v. Hungary, HUM. RTS. CASE DIG. 1175 (2006-2007).
- Barraco v. France [2009] E.H.R.L.R. 580.
- Case of Akgöl and Göl v. Turkey, nos. 28495/06 and 28516/06, ECHR 2011.
European Court of Justice
- Eugen Schmidberger, Internationale Transporte und Planzüge v. Austria (Case C112/00), [2003] ECR I-5659, 5722.
Germany
371
- BVerfGE 69, 315 - Brokdorf Decision of the First Senate 1 BvR 233, 341/81 f
(1985).
Israel
- Bank Mizrahi v. Migdal Cooperative Village, [1995] ISRLR 1.
Peru
- Corte Constitucional [C.C.] [Constitutional Court], diciembre 7, 2005, Sentencia
EXP. No 46-77-2004-PA/TC.
Spain
- Judgment of May 8, 1995, Constitutional Court, Second Chamber, STC 66/1995.
- Judgment of Feb. 17, 1998, Constitutional Court, Second Chamber, STC 37/1998.
- Judgment of October 27, 2003, Constitutional Court, First Chamber, STC
195/2003.
- Judgment of Apr. 16, 2007, Constitutional Court, First Chamber, STC 72/2007.
- Judgment of Jul. 7th, 2014, Audiencia Nacional, Sentencia No 31/2014.
- Juzgado de Instrucción Madrid, marzo 6, 2014, Recurso 982/2013.
- Judgment of Mar. 17th, 2015, Tribunal Supremo, Sala de lo Penal, Sentencia No
161/2015.
United States
- Marbury v. Madison, 5 U.S. 137 (1803).
- Lochner v. New York, 198 U.S. 45 (1905).
- Abrams v. United States, 250 U.S. 616 (1919).
- United States v. Schwimmer, 279 U.S. 644 (1929).
- Hague v. CIO, 307 U.S. 496 (1939).
- Feiner v. New York, 340 U.S. 315 (1951).
- Kunz v. New York, 340 U.S. 290 (1951).
- Aaron v. Cooper, 358 U.S. 1 (1958).
- N.A.A.C.P v. Alabama, 357 U.S. 449 (1958).
- Edwards v. South Carolina, 372 U.S. 229 (1963).
- Cox v. Louisiana, 379 U.S. 536 (1965).
- Katz v. United States, 389 U.S. 347 (1967).
- Police Dept. of City of Chicago v. Mosley, 408 U.S. 92 (1972).
- Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).
- Clark v. Community for Creative Nonviolence, 468 U.S. 288 (1984).
- Frisby v. Schultz, 487 U.S. 474 (1988).
372
- The State v. Miller, 260 Ga. 669 (1990).
- City of Ladue et al. v. Gilleo, 512 U.S. 43 (1994).
- McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995).
- Romer v. Evans, 517 U.S. 620 (1996).
- Vacco et al. v. Quill et al., 521 U.S. 793 (1997).
- Church of the American Knight of the Klu Klux Klan v. Kerik, 356 F.3d 197 (2d Cir.
2004).
- City of Chicago vs. Tieg Alexander et al., Memorandum Opinion and Order, No 11
MC1-237718, et seq. (2012).
- Order, In the Matter of Application of Jennifer Waller et. al. v. City of New York
112957/2011,
November
15,
2011,
available
at:
http://www.courts.state.ny.us/press/OWS111511.pdf
- Occupy Minneapolis v. County of Hennepin, 866 F. Supp. 2d 1062, 2011 U.S. Dist.
LEXIS 135646 (D. Minn. 2011).
- ACLU of Illinois v. Alvarez, 679 F.3d 583, (7th Cir. 2012).
- Garcia v. Bloomberg, F. Supp. 2d, 2012 WL 2045756 (S.D.N.Y. 2012).
- Occupy Eugene v. United States General Services Administration (GSA) 2013 U.S.
Dist. LEXIS 170700 (D. Or. Dec. 3, 2013).
- Felarca v. Birgeneau, 2014 U.S. Dist. LEXIS 6812 (N.D. Cal., Jan. 17, 2014).
- McCullen v. Coakley, 573 U.S. ___ (2014).
REPORTS AND GOVERNMENT DOCUMENTS
Amnesty International UK, Right to Protest under threat as Brazil pushes ‘terrorism’
law
ahead
of
World
Cup,
(May.
12,
2014),
available
at:
http://www.amnesty.org.uk/press-releases/right-protest-under-threat-brazilpushes-terrorism-law-ahead-world-cup#.U3C2TeM4ONA.twitter
Gobierno de Chile, Mensaje No 196-359, September 27, 2011.
Holmes, Nancy & Lithwick, Dara, The Federal Lobbying System: The Lobbying Act
and the Lobbyist’ Code of Conduct (Background Papers - Ottawa, Library of
Parliament,
Publication
No.
2011-73-E,
2011),
available
at:
http://www.gordonforpendle.com/files/article/403/Lobbying%20(Canada).pdf
(last visited Sep. 25, 2012).
Human Rights Council, Report of the Special Rapporteur on the rights to freedom of
peaceful assembly and of association (Maina Kiai), A/HRC/20/27. May 21, 2012.
Human Rights Council, Report of the Special Rapporteur on the rights to freedom of
peaceful assembly and of association (Maina Kiai), A/HRC/26/29. April 14, 2014.
373
IACHR-Office of the Special Rapporteur on Freedom of Expression, Annual Report
of the Inter-American Commission on Human Rights 2005, OEA/Ser.L./V/II.124 Doc.
Vol III. February 27, 2006.
IACHR-Office of the Special Rapporteur on Freedom of Expression, Annual Report
of the Inter-American Commission on Human Rights 2009, OEA/Ser.L/V/II. Doc.51.
December 30, 2009.
IACHR-Office of the Special Rapporteur on Freedom of Expression, Annual Report
of the Inter-American Commission on Human Rights 2011, OEA/Ser.L/V/II. Doc.69
Vol II. December 30, 2011.
IACHR-Office of the Special Rapporteur on Freedom of Expression, Annual Report
of the Inter-American Commission on Human Rights 2012, OEA/Ser.L/V/II.147
Doc.1 Vol II. March 5, 2013.
IACHR, Press Release 87/11, IACHR Expresses Concern for Violence Against
Student
Protests
in
Chile,
(Aug.
6,
2011),
http://www.cidh.oas.org/Comunicados/English/2011/87- 11eng.htm.
National Assembly of Québec, Bill 78 (2012, Chapter 12) “An Act to enable
students to receive instruction from the postsecondary institutions they attend,”
May 18, 2012.
Organization of American States, Annual Report of the Inter-American Commission
on Human Rights Vol. III: Report of the Office of the Special Rapporteur for
Freedom of Expression, OEA/Ser.L./V/II.124 Doc.7 (Feb. 27, 2006).
Protesta social y derechos humanos [Social protest and human rights], in INFORME
ANUAL SOBRE DERECHOS HUMANOS EN CHILE 2010 [ANNUAL REPORT ON HUMAN RIGHTS IN
CHILE 2010] (Santiago: Universidad Diego Portales, 2010).
UNDP, LA PROTESTA SOCIAL EN AMÉRICA LATINA [SOCIAL PROTEST IN LATIN AMERICA]
(Fernando Calderón coord., México-Buenos Aires: Siglo XXI Editores S.A., 2012).
PRESS NOTES
Andersen, Kurt, The Protester, TIME, Dec. 14, 2011.
Anti-protest legislation passes Quebec, THE GLOBE AND MAIL, May 18, 2012,
http://www.theglobeandmail.com/news/politics/anti-protest-legislation-passesin-quebec/article4186770/
374
Ban on masks at riots not needed, MPs hear, CBC.CA, May. 08, 2012,
http://www.cbc.ca/news/politics/ban-on-masks-at-riots-not-needed-mps-hear1.1201624
Caristrom, Gregg, Egypt passes law restricting public protests, ALJAZEERA, Nov.25,
2013, http://www.aljazeera.com/news/middleeast/2013/11/egypt-passes-lawrestricting-public-protests-2013112413847867334.html
Chilean police officers dismissed after fatal shooting, BBC NEWS, August 30, 2011,
http://www.bbc.co.uk/news/world-latin-america-14717934
Egypt referendum: ‘98% back new constitution’, BBC NEWS MIDDLE EAST, Jan. 19,
2014, http://www.bbc.co.uk/news/world-middle-east-25796110.
Gall, Carlotta, Tunisian Constitution, Praised for Balance, Nears Passage, NY TIMES,
Jan.
14,
2014,
available
at
http://www.nytimes.com/2014/01/15/world/africa/tunisian-constitutionpraised-for-balance-nears-passage.html?_r=0
Gobierno anuncia reforma legal para prohibir encapuchados en manifestaciones
[Government announces legal reform to prohibit masked protesters], NACION.CL, Aug.
13, 2011, available at http://www.lanacion.cl/gobierno-anuncia-reforma-legalpara-prohibir-encapuchados-en-manifestaciones/noticias/2011-0813/132238.html
In Ferguson, Washington Post reporter Wesley Lowery gives account of his arrest,
THE
WASHINGTON
POST,
Aug.
14,
2014,
http://www.washingtonpost.com/politics/in-ferguson-washington-post-reporterwesley-lowery-gives-account-of-his-arrest/2014/08/13/0fe25c0e-2359-11e486ca-6f03cbd15c1a_story.html
La fiscal pide penas de cinco años y medio de cárcel para los 20 acusados de asediar
el Parlament [The prosecutor asks for 5.5 years in prison for 20 accused of besieging
the
Parliament],
LAVANGUARDIA.COM, May.
17,
2013, available
at
http://www.lavanguardia.com/politica/20130517/54373612927/fiscal-pidecinco-anos-medio-acusados-asediar-parlament.html.
Las claves del anteproyecto de ley de Seguridad Ciudadana [The key of the Public
Safety
draft],
EL
MUNDO,
Nov.
29
2011,
http://www.elmundo.es/espana/2013/11/29/52985b7468434195418b4592.ht
ml
375
Los periodistas, detenidos y golpeados al cubrir las manifestaciones del 15-M
[Journalists, arrested and beaten while covering 15-M demonstrations], ELMUNDO.ES,
Aug.
05,
2011,
http://www.elmundo.es/elmundo/2011/08/05/comunicacion/1312558334.html
Martens, Pam, Occupy Movement files lawsuit against every federal regulator of Wall
Street, WALL STREET ON PARADE (February 28, 2013).
Mayores penas para los violentos en protestas abren el debate en Colombia
[Heightened sanctions on violent protesters open a debate in Colombia],
ELPAIS.COM.CO, Sep. 13, 2013,
http://www.elpais.com.co/elpais/colombia/noticias/mayores-penas-paraviolentos-protestas-colombia-abre-debate
Ministro Hinzpeter: “Ley antiencapuchados busca proteger el derecho a
manifestarse, pero en paz y sin vandalismo” [Minister Hinzpeter: “The anti-mask bill
seeks to protect the right to demonstrate, but peacefully and without vandalism], LA
TERCERA, Jul. 20, 2012, http://www.latercera.com/noticia/politica/2012/07/674473308-9-ministro-hinzpeter-ley-antiencapuchados-busca-proteger-el-derecho-amanifestarse.shtml
Molloff, Jeanine, HR 347 ‘Trespass Bill’ Criminalizes Protest, THE HUFFINGTON POST,
Mar. 12, 2012,
http://www.huffingtonpost.com/jeanine-molloff/trespassbill_b_1328205.html
Montreal police use controversial new laws to quell protest, THE GLOBE AND MAIL,
May. 23, 2012, http://www.theglobeandmail.com/news/national/montrealpolice-use-controversial-new-laws-to-quell-protest/article4204035/
Moynihan, Colin, Law Banning Masks at Protests is to be Challenged, N.Y. TIMES, Oct.
22, 2012.
Occupy Wall Street Protesters Rally for Health Care Reform, NY1, June 23, 2011,
available at http://manhattan.ny1.com/content/top_stories/149489/occupy-wallstreet-protesters-rally-for-health-care-reform
Oficialismo impulsa proyecto para regular protestas callejeras en Argentina
[Government promotes a bill to regulate street protests], LA NACIÓN, Apr. 16, 2014,
http://www.nacion.com/mundo/Bloque-oficialista-Argentina-protestascallejeras_0_1408859313.html.
376
Outrage as France become first nation in world to ban pro-Palestine demos, DAILY
MAIL, Jul. 18, 2014, http://www.dailymail.co.uk/news/article-2697194/OutrageFrance-country-world-ban-pro-Palestine-demos.html.
Piñera pone urgencia a ley anti encapuchados y critica a quienes le “hacen el juego a
los terroristas” [Piñera places urgency on anti-mask legislation and criticizes those
playing
“the
games
of
terrorists”],
NACION.CL,
Jan.
13,
2013,
http://www.lanacion.cl/pinera-pone-urgencia-a-ley-anti-encapuchados-y-criticaa-quienes-le-hacen-el-juego-a-los-terroristas/noticias/2013-01-13/123556.html
Presidente Piñera firma proyecto de ley que permite control preventivo de identidad
[President Piñera files a bill that will permit preventive identity verifications],
EMOL.COM,
Jul.
10,
2013,
http://www.emol.com/noticias/nacional/2013/07/10/608364/presidentepinera-firma-proyecto-de-ley-que-permite-control-preventivo-de-identidad.html
Proyecto de Ley de Seguridad Ciudadana (Texto íntegro) [Public Safety Bill (full
text)],
EL
HUFFINGTON
POST,
Jul.
11,
2014,
http://www.huffingtonpost.es/2014/07/11/ley-seguridadciudadana_n_5578288.html
Seymour, Richard, From Quebec to Spain, anti-protest laws are threatening true
democracy,
THE
GUARDIAN,
Nov.
25,
2013,
http://www.theguardian.com/commentisfree/2013/nov/25/quebec-spain-antiprotest-laws-democracy
Spanish Government approves draft law cracking down on demonstrations, THE
GUARDIAN,
Nov.
1,
2013,
available
at
www.theguardian.com/world/2013/dec/01/spanish-government-approves-lawdemonstrations
Spanish government tones down its controversial Citizen Safety Law, ELPAÍS.COM,
May 28, 2014,
http://elpais.com/elpais/2014/05/28/inenglish/1401272039_980140.html
Suder, Jason, How to be arrested in Chile without breaking the law, THE HUFFINGTON
POST, Jun. 3, 2012, http:// http://www.huffingtonpost.com/jason-suder/chilefreedom-of-press_b_1324547.html.
Under
arrest?
Tweet
it,
fast,
NATIONALPOST,
May.
23,
2012,
http://fullcomment.nationalpost.com/2012/05/23/under-arrest-tweet-it-fast/
377
Wearing a mask at riot is now a crime, CBS.CA, Jun. 19, 2013,
http://www.cbc.ca/news/politics/wearing-a-mask-at-a-riot-is-now-a-crime1.1306458
OTHER
Athens riot police beats Photo-reporters, KEEPTALKINGGREECE.COM Oct. 5, 2011,
http://www.keeptalkinggreece.com/2011/10/05/athens-riot-police-beats-photoreporters-pcts-video/
Benhabib, Seyla, The Arab Spring: Religion, revolution and the public sphere,
Eurozine, (May. 5, 2011), http://www.eurozine.com/articles/2011-05-10benhabib-en.html
Fédération étudiante universitaire du Québec, “La communauté universitaire
solidaire contre la hausse des frais de scolarité un plan de financement des
universités sur le dos des étudiantes et des étudiants”, March 30, 2011,
http://feuq.qc.ca/spip.php?article195&lang=fr
Gallala-Arndt, Imen, Constitutional Reforms in Tunisia, Egypt, Morocco and Jordan: A
Comparative Assessment, IEMED2012 141, 142 (2012), available at:
http://www.iemed.org/observatori-en/arees-danalisi/arxiusadjunts/anuari/med.2012/gallala_en.pdf
Hardt, Michael & Negri, Antonio, The Fight for ‘Real Democracy’ at the Heart of
Occupy
Wall
Street,
FOREIGN
AFFAIRS,
(Oct.
11,
2011),
http://www.foreignaffairs.com/articles/136399/michael-hardt-and-antonionegri/the-fight-for-real-democracy-at-the-heart-of-occupy-wall-street.
Posner, Richard, The People’s Court, NEW REPUBLIC, Jul. 19, 2004.
Smith, Rhiannon, Libya’s Constituent Assembly: Light at the end of the tunnel?,
OPENDEMOCRACY.NET, (Nov. 11, 2013), http://www.opendemocracy.net/arabawakening/rhiannon-smith/libyas-constituent-assembly-light-at-end-of-tunnel
Student’s Society of McGill University, “SSMU Statement & Information Regarding
November 10th Riot Police on Campus”, November 11, 2011,
http://ssmu.mcgill.ca/blog/2011/11/ssmu-statement-information-regardingnovember-10th-riot-police-on-campus/.
378